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CASES    ON    PLEADING 


BY 

JAMES   TOWER   KEEN 

Instructor  of  Law  at  Boston  University 


"  And  know  thou  my  sonne,  that  I  will  not  that  thou  beleeve,  tliat  all 
that  I  have  said  iu  the  said  Bookes  is  Law,  for  that  1  will  not  take  upon 
me  nor  presume  :  But  of  those  things  that  be  not  law,  inquire  and  leanie 
of  my  wise  Masters  learned  in  the  law." 

—  The  Epilogue  to  Littleton^s  Tenures. 


ST.  PAUL 

WEST  PUBLISHING  CO. 

190.5 


r 


Copyright,  1905, 
By  James  T.  Keen. 


2    ^S- 
I  ^  7 


To  7^^.' 

LESLIE    MELVILLE    BIGELOW,    .. 

Harvard,  A.B.,  1895,  ^'^ 

SON  OF  MELVILLE  MADISON  BIGELOW. 

i^e  wa?  a  poung  man  of  great  promijse. 


'Ocr^  AT- 


TABLE  OF  CONTENTS. 

Pages 
Introduction vii-x 

Plan  of  the  Book xi 

Table  of  Cases xiii-xvi 

PART   I. 

PERSONAL   ACTIONS. 

CHAPTER    I. 
Original  Writs  and  Process 1-9 

CHAPTER   II. 

Actions  Before  the  Statute  of  Westminster  II.        .     .       10-143 

CHAPTER  III. 
The  Parent  of  Case,  Trover,  and  Assumpsit  ....     144-245 

CHAPTER  IV. 
Trials 246-2.57 

CHAPTER   V. 
Codes  and  Practice  Acts 258-264= 

PART   II. 

PLEADINGS   IN   PERSONAL    ACTIONS. 

CHAPTER   VI. 
Declarations 265-338 

CHAPTER  VII. 
Demurrers 339-373 


vi  TABLE    OF   CONTENTS. 

chaptp:r  VIII. 

Pages 
Dilatory  Pleas      374-407 

CHAPTER   IX. 
Pleas  in  Bar 408-525 

CHAPTER   X. 
Rules  of  Pleading     . 526-538 

CHAPTER   XI. 
Motions  Based  upon  the  Pleadings 539-552 

INDEX 553-570 


INTRODUCTION 

This  work  stands  upon  three  foundation  stones.  First,  the  re- 
lationship between  modern  remedial  and  ancient  remedial  law. 
Second,  the  relationship  between  modern  substantive  and  ancient 
remedial  law.  Third,  the  relationship  between  modern  social  and 
financial  conditions  and  ancient  remedial  law. 

First,  of  the  connection  between  special  pleading  and  the  plead- 
ing of  to-day.  They  cannot  be  separated.  The  very  statutes  which 
seek  to  abrogate  common-law  pleading  use  its  terms ;  and  how  can 
one  understand  a  statute  without  knowing  what  the  words  of  the 
statute  mean  ?  And  in  doubtful  cases  of  interpretation  of  statu- 
tory words,  where  shall  one  turn  for  light  but  to  the  place  —  the 
only  place  —  where  the  words  have  been  made  clear  —  to  the 
common  law  ?  Speaking  of  the  present  law  of  Massachusetts, 
Chapman,  J.,  said,  "  And  though  it  [the  Practice  Act]  changes  the 
forms  of  pleading  and  dispenses  with  technicalities,  it  is  still  im- 
portant in  framing  declarations  and  answers,  so  as  to  present  causes 
properly  for  trial,  that  the  principles  of  special  pleading  should  be 
carefully  regarded."  ^  With  reference  to  the  present  law  in  States 
which  have  supplanted  common-law  pleading  by  codes  of  civil 
procedure,  one  writer  declares,  "  It  is  no  longer  pretended  that  the 
knowledge  of  common-law  pleading  is  rendered  useless  by  the 
code,  but  that  the  same  fundamental  principles  underlie  both  sys- 
tems." ^  And  another,  "It  is  assumed  that  the  student  of  the  code 
is  familiar  with  the  common-law  and  equity  systems  of  pleadings. 
If  not,  he  is  groping  in  the  dark,  and  much  that  is  offered  will 
escape  liis  apprehension.  This  knowledge  is  deemed  essential,  not 
only  because  well-educated  lawyers  must  know  the  history  of  our 
jurisprudence ;  must  live  through  it,  as  it  were,  and  measure  every 
step  of  its  marvellous  progress,  but  because  the  foundation  idea  of 
pleadings  is  not  changed."^     It  follows,  then,  that  a  knowledge 

1  Read  v.  Smith,  1  Allen,  .^ig,  at  .521. 

2  Andrews  in  his  introduction  to  Stephen,  Pleading,  23. 
8  Bliss,  Code  Pleading  (2d  ed.),  §  141. 


viii  INTRODUCTION. 

of  common-law  procedure  is  useful  to  the  busy,  practising  lawyer, 
because  it  enables  him  to  draw  accurate  pleadings.  We  shall 
study  with  that  end  in  view. 

Second,  of  the  connection  between  special  pleading  and  modern 
substantive  law.     Mr.  Justice  Holmes  declares  that,  "Whenever 
we  trace  a  leading  doctrine  of  substantive  law  far  enough  back,  we 
are  likely  to  find  some  forgotten  circumstance  of  procedure  at  its 
source."^     Pollock   and   Maitland   write,   "Those   few    men   who 
were  gathered  at  Westminster  round  Pateshull  and  Ealeigh  and 
Bracton  were  penning  writs  that  would  run  in  the  name  of  king- 
less  commonwealths  on  the  other  shore  of  the  Atlantic  Ocean ; 
they  were  making  right  and  wrong  for  us  and  for  our  cliildren."^ 
To  make  right  and  wrong  is  to  make  substantive  law,  and  the  pas- 
sage mi"ht  well  read,  "  were  making  substantive  law  for  us  and  for 
our  children."     In  the  following  pages,   we   shall    plod   step    by 
step  through  the  history  of  the  several  actions :  we  shall  note  the 
origin  and  evolution  of  each  ;  we  shall  deal  minutely  with  the 
definition  and  characteristics  of  each ;  and  then,  taking  the  whole 
scheme  of  common-law  actions  as  a  basis,  we  shall  determine  why 
it  was  and  is  that  substantive  rights  went  unvindicated  and  still 
go  unvindicated;  and    substantive  wrongs  went  unredressed  and 
still  go  unredressed.     We  believe  that  the  answer  to  the  question 
is  this :  Because  the  writs  which  "  the  few^  men  who  were  gathered 
at  Westminster  round  Pateshull  and  Ptaleigh  and  Bracton  were 
penning ;"  writs  which  were  to  "run  in  the  name  of  kingless  com- 
monwealths on  the  other  shore  of  the  Atlantic  Ocean ; "  writs  suf- 
ficient only  for  the  day  of  Pateshull,  Ealeigh,  and  Bracton,  became 
ri"id  boundaries  to  actions  ;   and   though  substantive  law  might 
expand,  remedial  law  would  not  expand.     It  is  usual  to  speak  of 
the  perpetuated  procedure  of  the  ancients  as  worthy  of  the  deepest 
veneration.     We  can  only  compare  it  with  a  cage  in  which  the 
infant  substantive  law  was  put  to  live :  the  substantive  law  grew, 
and  outgrew  the  bounds  of  its  cage,  but  the  bars  would  not  yield  ; 
and   the  result  was  a  deformed,  misshapen   thing,   which,  unsup- 
plemented  by  equity  and  s'tatute,  would  make  justice  a  laughing- 
stock.    We  must,  then,  trace  the  effect  of  remedial  upon  substantive 
law  with  greatest  care. 

Third,  of  the  connection  between  special  pleading  and  modern 
social  and  financial  conditions.     If  rules  of  procedure  formulated 

1  Holmes,  Common  Law,  253.  ^  Pollock  and  Maitlaud,  670. 


INTRODUCTION.  IX 

in  the  days  of  broadsword  and  armor,  of  post-chaise  and  RoLin 
Hood,  have  wrought  limitations  upon  modern  substantive  law,  a 
fortiori,  they  have  wrought  limitations  upon  all  intercourse  between 
men  and  men.  In  a  recent  letter  to  Dr.  Vinogradoft",  the  successor 
at  Oxford  of  Sir  Henry  Maine  and  Sir  Frederick  Pollock,  Dean 
Melville  M.  Bigelow  says,  "  But  is  law  as  we  have  it  what  we  now 
require  ?  Can  the  conditions  of  primitive  times,  or  of  much  later 
times  even  down  to  the  nineteenth  century,  serve  this  age  of  elec- 
tricity —  the  twentieth  century  ?  Some  of  us  are  convinced  that 
they  cannot.  They  long  since  became  the  subjects  of  purely  or 
largely  a  jjriori  rules  of  law  ;  and  we  in  America  at  least  are  feel- 
ing the  pinch  of  them.  They  are  fettering  in  a  most  serious  way 
natural  and  reasonable  pursuits.  The  criminal  law,  for  instance,  is 
breaking  down,  or  rather  is  trying,  rightly,  I  think,  to  burst  its 
fetters  :  it  is  calling  on  equity,  which  used  to  say  it  had  nothing  to 
do  with  criminal  law,  to  come  to  its  aid.  [For  example,  injunctions 
against  unlawful  picketing  in  strikes  arising  out  of  labor  troubles.] 

"  Our  Scientific  School  —  we  are  just  starting  it  in  this  Law 
School  —  sets  out  with  the  idea  that  the  law,  so  far  as  business 
and  pursuits  generally  are  concerned,  should  be,  not  a  cause 
but  an  effect  of  relations  :  in  other  words,  as  Lord  Bowen  once  put 
it  in  a  serious  talk  with  me,  laiv  should  folloio  husiiiess  or  2Jur suits, 
and  not  seek  to  press  them  this  way  or  that  in  advance. 

"  That,  we  think,  is  the  true  idea  —  the  true  scientific  method. 
History  may  and  will  help  —  so  will  the  Analytic  Method  : 
but  both  of  these  will  fall  vastly  short  of  furnishing  safe  guides  in 
the  new  conditions  which  confront  us  to-day.  Our  theory  —  I 
mean  the  tlieory  of  Boston  University  Law  School  —  is  that  we 
should  study  and  master,  so  far  as  possible,  the  present  needs  of 
business  intercourse,  and  that  the  law  should  obediently  follow, 
so  long  as  nobody's  rights  are  invaded  and  the  welfare  of  the  State 
is  not  assailed.  With  us,  over  here,  business  is  demanding  that 
this  shall  be  done,  and  that  the  fetters  of  mediievalism  shall  be 
cast  aside.  It  seems  to  me  that  the  demand  is  right,  and  it  seems 
equally  clear  that  it  must  be  heeded." 

For  every  petitioner  in  equity  who  fails  because  he  has  a  com- 
plete and  adequate  remedy  at  law ;  every  plaintiff  who  fails  be- 
cause he  should  have  brought,  say,  case  instead  of  trespass,  or 
an  action  ex  delicto  instead  of  ex  contractii ;  every  defendant  who 
fails  because  under  his  plea  he  is  precluded  from  introducing  evi- 


X  INTRODUCTION. 

dence  which  the  substantive  law  would  make  a  defence ;  briefly,  in 
every  case  where  a  litigant  fails  because  he  has  misconceived  his 
pleading,  substantive  law  is  defeated  by  procedural  technicalities 
and  injustice  is  wrought.  This  both  at  common  law,  and  under 
practice  acts  based  upon  the  common  law. 

An  expression  of  gratitude  is  called  for  to  my  masters  in  the 
history  of  procedure.  To  Sir  Frederick  Pollock,  and  to  Mr.  F.  W. 
Maitland,  of  England,  to  James  Barr  Ames,  Oliver  Wendell 
Holmes,  James  Bradley  Thayer,  and  Melville  Madison  Bigelow  of 
America,  the  profession  owes  a  debt  greater  even  than  the  debt 
it  owes  to  Austin,  Maine,  and  Eeeves.  More  could  not  be  said. 
They  have  made  the  history  and  procedure  of  the  English  law 
their  own. 

To  Mr.  Owen  D.  Young,  former  Instructor  in  Pleading  at  Boston 
University,  the  editor  is  indebted  for  inestimable  help  in  the  char- 
acter of  the  present  work.  Especially  is  he  under  obligation  ta 
Melville  M.  Bigelow,  by  whose  teaching  his  thought  has  been 
moulded,  and  whom  he  must  thank  for  whatever  slight  degree 
of  success  he  may  ever  attain. 

Valuable  editorial  assistance  has  been  rendered  by  Arthur  P. 
Gay  of  the  Boston  bar. 

JAMES   TOWER   KEEK 

Boston  University  Law  School, 
August  1,  1904. 


PLAN   OF  THE   BOOK. 

This  work  proceeds  upon  the  theory  that  the  chief  value  of  the 
study  of  common-law  pleading  is  not  in  its  worth  as  a  course  in 
legal  logic,  but  rather  in  its  usefulness  as  a  science  inseparably 
joined  to  living  law.  With  this  in  view,  the  origin  and  evolution 
of  each  of  the  several  actions  have  been  carefully  traced,  and  the 
characteristics  of  those  actions  in  developed  law  have  been  dwelt 
upon  at  length. 

The  plan  may  be  briefly  stated.  First  is  presented  in  bold  type 
a  brief  statement  by  the  editor  of  the  vital  characteristics  of  the 
action  or  pleading  to  be  studied.  Second,  there  are  given,  in  much 
smaller  type,  precedents  of  the  very  pleadings  themselves,  chosen 
from  classic  pens.  Third,  cases  are  reported  in  ordinary  type 
which  illumine  the  action  or  the  pleading  discussed.  Notes  are 
prefixed  to  the  cases,  but  these  notes  merely  indicate  the  issues 
decided,  and  in  no  degree  enable  the  student  to  abstain  from 
a  searching  study  of   the  principles  involved. 

The  relation  between  special  pleading  and  pleading  under  codes 
and  practice  acts  has  been  briefly  sketched.  If  it  is  true  that, 
although  the  codes  have  abolished  all  distinction  between  the 
mere  forms  of  actions,  there  are  yet  intrinsic  differences  between 
them  which  no  law  can  abolish,  students  of  code  pleading  may 
find  the  book  of  some  use.  The  determination  of  what  limita- 
tions have  been  wrought  upon  present  substantive  law  by  the  sur- 
vival of  archaic  rules  of  procedure  is  necessarily  left  to  inference ; 
but  it  is  believed  that,  upon  thoughtful  reading  of  the  cases,  these 
limitations  will  plainly  appear. 


TABLE    OF   CASES. 


(a)  Cases  from  the  Year  Books. 

Page 
Abbot,  Walter,  v.  Gilbert  de  Baillol, 

(Big.  Plac.  Ang.  Norm.  175)  126 
Andrew,   Sureman's  Son,    v.    Peter, 

Leofwin's  Son  (Sel.  Soc,  Sel.  PI. 

Cor.  45)  147 

Anon.  1  Rot.  6  (Anno  1194)  49 
Hubert  of  St.  Q.  v.  Stephen  of  F. 

(Big.  Plac.  Ang.  Norm.  285)  117 

Keilway,  77,  pi.  25  223 
Matilda  le  Passur  v.  John  de  Me- 

wick  (Sel.  Soc,  Sel.  Civ.  PI.  7)  146 

Novse  Narrationes,  f.  65  182 
Peter  de  Paxton  v.  Osbert  Male  (Sel. 

Soc,  Sel.  Civ.  PI.  86)  146 
Ealph  Long  v.  William  of  Winwick 

(Sel.  Soc,  Sel.  PI.  Cor.  88)  108 
Robert  de  Anmer  v.  William  de  An- 

mer  (Sel.  Soc,  Sel.  Civ.  PI.  89)  125 

Y.  B.  22  Ass.  94,  pi.  41  2U8 

Y.  B.  20  Kdw.  I.  188  50 

Y.  B.  21  Edw.  I.  2  13 

Y.  B.  21  Edw.  I.  35  14 

Y.  B.  21  Edw.  L  44  147 

Y.  B.  22  Edw.  L  467  296 

Y.  B.  21-22  Edw.  L  468  180 

Y.  B.  30-31  Edw.  I.  222  68 

Y.  B.  30-31  Edw.  I.  508  109 

Y.  B.  30-31  Edw.  I.  527                 105,  106 

Y.  B.  30-31  Edw.  L  144  126 

Y.  B.  30-31  Edw.  I.  158  126 

Y.  B.  30-31  Edw.  I.  235  13 

Y.  B.  30-31  Edw.  I.  317  254 

Y.  B.  32  Edw.  I.  15  13 

Y.  B.  34  Edw.  L  151  25 

Y.  B.  13  Edw.  III.  244  50 

Y.B.  17  Edw.  III.  141  51 

Y.  B.  48  Edw.  III.  2,  pi.  4  143 

Y.  B.  18  Edw.  IV.  f.  2.3,  pi.  5  183 

Y.  B.  2  Men.  IV.  3,  pi.  9  222 

Y.  B.  9  Hen.  V.  14,  pi.  23  17 

Y.  B.  19  Hen.  VI.  49,  pi.  6  210 

Y.  B.  37  Hen.  VL  9,  pi.  18  17 

(b)  Other  Cases. 

AniTBOL  V.  Beniditto   (2  Taunton, 

401)  382 

Anon.  (1  Salkeld,  209)  30 

Anon.  (1  Salkeld,  278)  413 

Anon.  (2  Salkeld,  519)  361 

Anon.  (2  Salkeld,  643)  439 


Page 

Anon.  (3  Salkeld,  122)  348 

Anon.  (3  Salkeld,  365)  189 

Anon.  (1  Wilson,  302)  377 

Anon.  (2  Wilson,  150)  361 

Anon.  (2  Wilson,  10)  413 

Anon.  (Holt,  660)  4.30 

Anon.  (Anderson,  117)  24 

Anon.  (3  Leonard,  119)  135 

Anon.  ( Viner's  Abr.  Ac.  40,  pi.  22)  53 

Anon.  (Viner's  Abr.  Det.  37,  pi.  62)  184 

Anon.  (Viner's  Abr.  Det.  33,  37)  296 

Anon.  (Brooke,  Det.  de  Biens,  pi.  42)  185 
Armory  v.  Delamirie  (1  Strange,  505)  191 
Armory  v.   M'Gregor  (12  Johnson, 

287)  343 

Arundell  v.  Trevill  (Siderfin,  81)  470 

Asliby  V.  White  (1  Salkeld,  19)  163 
Ashford  v.  Thornton  (1  B.  and  Aid. 

405)  249 
A.    and    0.    Canal    Co.    v.   Leitch 

(4  Denio,  65)  368 


Backshaw  v.  Clerke  (5  Modern,  314)  432 
Baldwin  v.  Cole  (6  Modern,  212)  190 
Barber  v.  Vincent  (Freeman,  531)  342 
Barret  v.  Fletcher  (Cro.  Jac.  220)  540 
Beaver  v.  Hides  (2  Wilson,  300)  316 
Beckwith  v.  Nott  (Cro.  Jac  504)  25 
Bedingfield  v.  Onslow  (3  Levinz,  209)  156 
Bennus  v.  Guyldley  (Cro.  Jac.  505)  142 
Benson  v.  Bacon  (99  Indiana,  156)  305 
Bigelow  V.  Cambridge,  etc,  Turn- 
pike Corp.  (7  Mass.  201)  31 
Billcr  V.  Elliot  (Tothill,  73)  382 
Bird  V.  Randall  (3  Burrowes,  1345)  164 
Bishop  V.  Montague  (Cro.  Eliz  824)  203 
Bladwell  v.  Sleggein  (Dyer,  2196)  28 
Bo^rgs  V.  Newton  (2  Bibb,  221)  293 
Bold  V.  Warren  (1  Levinz,  81)  528 
Bolton  r.  Banks  (Cro.  Car.  254)  321 
Bovey  v.  Castleman  (Ld.  Raymond, 

69)                                           '  237 

Bowdell  V.  Parsons  (10  East,  359)  354 

Bowlus  r.  Brier  (87  Indiana,  391)  328 

Brikhed  v.  Wilson  (Dyer,  24())  24 

Brind  v.  Dale  (2  M.  and  VV.  775)  480 

Brook  r.  Montague  (Oo.  Jac  90)  457 

Brooke  v.  Brooke  (1  Siderfin,  184)  539 

Brown  v.  Brinkiey  (Owen,  58)  314 
Brown   v.   Cornish    (Ld.  Raymond, 

217)  432 


XIV 


TABLE    OF   CASES. 


Brown  v.  Giles  (1  Car.  and  P.  118) 
Brown  r.  Van   Duzen   (11  Johnson, 
412) 

Koberts  (2  Wils.  143) 
Swinnock  (1  Modern,  7) 
Bolles  (9  Illiode  Island, 


Briidnell  v. 
Buc'knall  v 
Bullock  V. 
501) 


Page 
l-Z-2 

38(i 
522 

388 


Burnby  v.  Bollctt  (16  M.  and  W.  644)  213 
Burser  v.  Martin  (Cro.  Jac.  40)  306 

Butterfield  v.  Forester  (11  East,  60)      155 
Buxendin  v.  Sharp  (2  Salkeld,  602)      322 


Campbell  v.  St.  Joiin  (1   Salkeld, 

219)  370 

Case  of  Slander  (Owen,  80)  310 

Castle  V.  Batement  (2  Levinz,  13)  388 

Castleman  i;.  Hobbs  (Owen,  57)  314 

Chandelor  v.  Lopus  (Cro.  Jac.  4)  211 
Chappie   V.   Durston   (1    Crompton 

and  J.  1)  414 
Cliawner  v.  Bowes'  Case  (Godbolt, 

217)  134 

Cliffords.  Coney  (1  Mass.  495)  391 

Cockerell  v.  Armstrong  (Willes,  99)  504 

Coggs  V.  Bernard  (1  Salkeld,  20)  230 

Cole  V.  Fisher  (11  Mass.  136)  110 
Cole   V.    Maunder    (2   RoUe's  Abr. 

548)  340 
Cole  V.  Smalley  (1  Dutcher,  374)  361 
Cole  V.  Turner  (6  Mod.  149)  93 
Collins  V.  Campbell  (18  Khode  Is- 
land, 738)  320 
Collins  V.  Johnson   (Federal  Cases, 

3015  a)  37 

Com.  1-.  Churchill  (5  Mass.  174)  396 

Cooke  V.  Gibbs  (3  Mass.  193)  149 

Cooper  V.  Chitty  (1  Burrowes,  31)  185 
Couling    V.    Coxe    (6  Dowling  and 

Lowndes,  399)  550 
Coupledike  v.  Coupledike  (Cro.  Jac. 

39)  56 
Cowlishaw  v.  Cheslyn  (1  Crompton 

and  J.  48)  449 

Crogate's  Case  (8  Reports,  66)  497 


Dalston  v.  Janson  (5  Modern,  90)  52 

Dalton  u.  Favour  (3  N.  H.  465)  178 

Dame  Audley's  Case  (Moore,  25)  529 

Dame  v.  Dame  (43  N.  11.  37)  57 
Dannett   v.   CoUingdell  (2   Shower, 

395)  112 

D'Arcy  v.  Steur  (179  Mass.  40)  460 

Davies  v.  Benton  (6  B.  and  C.  216)  365 

Day  V.  Austin  (Owen,  70)  109 

Dean  i-.  Boyd  (9  Dana,  169)  304 

Devoe  v.  Dr.  Coridon  (1  Keble,  305)  437 

Dickson's  Case  (Hetley,  64)  106 
Dockminique  v.  Davenant  (Salkeld, 

220)  376 
Dodd   V.   Kyffin   (7  Terra   Reports, 

354)  453 
Doulson  V.   Mathews  (4  Term  Re- 
ports, 503)  375 


Page 

Dover  v.  Rawlins  (2  M.  and  R.  544)  470 
Draper  v.  Glassop  (1  Ld.  Raymond, 

153)  433 

Dugan  V.  Nichols  (125  Mass.  570)  «7 
Duke   of    Somerset   v.    Cookson    (3 

Pere  Williams,  389)  63 


Earl  of  Falmouth  v.  Penrose  (6 

B.  and  C.  385)  238 

Edwards  v.  Brown  (1  Crompton  and 

J.  307)  421 

Eichorn  v.  Lemaitre  (2  Wilson,  367)  404 
Elsee  V.  Gatward  (5  Term  Reports, 

143)  225 

Evansville,   etc.   Railroad    v.   Hiatt 

(17  Indiana,  102)  329 


Fallowes  v.  Taylor  (7  Term  Re- 
ports, 475)  133 
Fisher  v.  Wren  (3  Modern,  250)  532 
Fits  V.  Freestone  (1  Modern,  210)  433 
Fletcher  v.  Wilkins  (6  East,  286)  77 
Fortescue  v.  Holt  (1  Ventriss,  213)  523 
Fouldes    V.    Willoughby  (8  M.  and 

W.  540)  191 

Fowler  v.  Byrd  (Fed.  Cases,  4999  a)  385 

Fuller  V.  Smith  (3  Salkeld,  366)  185 

Furneaux  v.  F'otherby  (4  Campbell, 

136)  443 


Gaile  v.  Betts  (3  Salkeld,  142)  580 

Gale  V.  Nixon  (6  Cowen,  445)  130 

Gammon  v.  Vernon  (T.  Jones,  104)  28 

Garford  v.  Clerk  (Cro.  Eliz.  837)  812 

Gates  V.  Bailey  (2  Wilson,  313)  170 
Gibbons  v.  Pepper  (1  Ld.  Raymond, 

38)  406 

Gilbert  v.  Parker  (2  Salkeld,  629)  460 
Gledstane   v.   Hewitt   (1   Crompton 

and  J.  565)  297 

Good  V.  Lehan  (8  Cush.  301)  406 
Goodchild  v.  Pledge  (1  M.  and  W. 

363)  277 
Goodman    v.    Ayling   (1    Brownlow 

and  Goldesborough,  213)  107 
Gordon  v.  Harper  (7  Term  Reports, 

9)  200 

Gould  V.  Barnard  (3  Mass.  199)  407 
Gould  V.  Lasbury  (1  Crompton,  M. 

and  R.  254)  477 

Goulet  V.  Asseler  (22  N.  Y.  225)  258 

Graham  y.  Peat  (1  East,  238)  119 
Greene  v.   Goddard  (2  Salkeld,  641) 

92 

Greene  i'.  Home  (1  Salkeld,  197)  143 

Greenelife's    Executors    v.    W 

(Dyer,  42  a)  534 


Haiton  v.  Jeffreys  (10  Modern,  280)  371 
Hall  r.  Winckfeild  (Hobart,  195  a)  272 
Hallet  V.  Byrt  (5  Modern,  252)         75,  475 


TABLE  OF  CASES. 


.  XV 


Page 

Hard's  Case  (1  Salkeld,  23)  286 

Harebottle  v.  Placock  (Cro.  Jac.  21)  629 

Hart  V.  Loncjfield  (7  Modern,  148)  636 
Harvie   v.    Blacklole    (1    Brownlow 

and  Goldesborou-ili,  2:]6)  108 
Hastrop  v.  Hastings  (I  Salkeld,  212)  362 
Haworth   v.  Spraggs   (8   Term    Re- 
ports, 515)  379 
Hayselden  v.  Staff   (5  Ad.  and   E. 

153)  490 
Heard  v.  Baskerville  (Ilobart,  232)  351 
Hemming   v.   Gasson    (Ellis,  Black- 
bum,  and  Ellis,  346)  312 
Hickman  v.  Searcy's  Executors  (17 

Tenn.  47)  36 

Hill  V.  Wright  (2  Espinassc,  669)  469 

Holbrook  v.  Dow  (1  Allen,  397)  239 

Holder  v.  Taylor  (Hobart,  12)  139 

Hole  V.  Finch  (2  Wilson,  393)  378 
Hooper    v.    Shephard    (2    Strange, 

1089)  35 
Hoyt  V.  Gelston  (13  Johnson,  141)  113 
Hughes   V.   Union    Insurance  Com- 
pany (8  Wheat.  294)  38 
Humphreys  v.  Bethily  (2  Ventriss, 
198, 222)  530 


Ingledew  v.  Cripps  (Ld.  Raymond, 

814)  28 

Isaac  V.  Farrar  (1  M.  and  W.  65)  500 


JoHNES  V.  Williams  (Cro.  Jac.  165)  439 

Johnson  v.  Aylmer  (Cro.  Jac.  126)  311 
Jones  V.  Ciiapman  (18  Law  J.  Rep. 

Exch.  456)  446 
Jones  V.  Heme  (2  Wilson,  87)  310 
Jones  V.  Hoar  (5  Pick.  285)  240 
Jones  (-'.   Macquillan  (5   Term   Re- 
ports, 195)  381 


Kellogg  v.  Ingersoll  (1  Mass.  5)  429 

Kettle  V.  Bromsall  (Willes,  118)  54 

King,  The,  v.  Watson  (5  East,  480)  122 
King,  The,  v.  Williams  (2  B.  and  C. 

538)  248 
Knapp    V.    Salisbury    (2   Campbell, 

500)  440 

Knowles  v.  Eastham  (11  Cush.  429)  29 


Lacy  v.  Reynolds  (Cro.  Eliz.  219)  547 
Lady  Faulkland  v.  Staniou  (12  Mod- 
em, 400)  377 
Lambert  v.  Taylor  (4  B.  and  C.  138)  548 
Lamplough   v.  Shortridge  (Salkeld, 

219)  349 

Law  V.  Saunders  (Cro.  Eliz.  913)  285 

Lawrence  r.  Smith  (5  Mass.  362)  375 

Lillie  r.  Trice  (5  Ad.  and  E.  645)  459 

Lyall  V.  Higgins  (4  Q.  B.  Rep.  528)  486 

Lynner  v.  Wood  (Cro.  Car.  157)  436 


Page 
Marlow  V.  Weeks  (Barnes,  Notes, 

452)  109 

Marriott  v.  Lister  (2  Wilson,  141)  19 
Master  and  Wardens,  etc.,  v.  Gled- 

hill  (Sayer,  274)  350 
Master  v.  Hertz  (3  M.  and  S.  450)  378 
Mathews  v.  Weller  (3  Denio,  52)  360 
Mennie  v.  Blake  (6  Ellis  and  Black- 
burn, 842)  82 
Mercer  v.  Sparks  (Owen,  51)  319 
Mills  V.  Bond  (Fortescue,  363)  413 
Milman  a.  Dolwell  (2  Campbell.  378)  441 
Milward  v.  Weldon  (Tothill,  101)  408 
Mitchil  ».  Alestru  (1  Ventriss,  295)  95 
Mole  V.  Wallis  (1  Levinz,  81)  628 
Moore  v.  Jones  (2  Strange,  814)  138 
Morris  v.  Owen  (Tothill,  76)  326 
Mosely  v.  Fawcet  (Moore,  543)  208 
Mulgrave  v.  Ogden  (Cro.  Eliz.  219)  189 
Mulry  V.  Ins.  Co.  (5  Gray,  541)  435 
M'Voy  V.  Wheeler  (6  Porter,  201)  140 


Nevil  v.  Soper  (1  Salkeld,  214)  137 

Nurse  v.  Frampton  (1  Salkeld,  213)       537 


Oglethorpe  v.  Maud  (Hobart,  128  a)     9 
Owen  V.  Reynolds  (Fortescue,  341)       528 


Palmer  v.  Ekins  (2  Ld.  Raymond, 

1550)  523 

Palmer  v.  Stavely  (Salkeld,  24)  536 
Paramour  v.  Johnson  (12  Modern, 

376)  431 

Parker  v.  Col  cord  (2  N.  H.  36)  385 

Partridge  v.  Crocker  (Plowden,  77)  344 

Pearcy  v.  Walter  (6  Car.  and  P.  232)  440 

Pease  v.  Piielps  (10  Conn.  62)  345 

Pecke  V.  Redman  (Dyer,  113  a)  234 

Pliilips  V.  Robinson  (4  Bing.  106)  463 

Pickering  v.  Rudd  (2  Campbell,  219)  459 
Pillans  V.  Van  Mierop  (3  Burrowes, 

1663)  128 

Pitts  V.  Gaince  (1  Salkeld,  10)  177 

Plumpton  V.  Headlam  (Tothill,  74)  376 

Popplewell  V.  Pierce  (10  Gushing,  509)  432 

Powys  V.  Williams  (Lutwyche,  1601)  362 

Price  V.  Weaver  (13  Gray,  273)  434 

Pridam  v.  (Tucker  Noy,  133)  319 

Purser  v.  Walter  (Cro.  Jac.  46)  306 

Pyne  v.  Dor  (2  Car.  and  P.  578)  198 


Quick  v.  Cutter  (Stearnes,  Real  Ac. 
501)  154 


Radford  v.  Harbyn  (Cro.  Jac.  122)  474 

Rainford  r.  Fen  wick  (Carter,  215)  342 
Rann  v.  Hughes  (7  Term  Reports, 

350)  132 

Rathbone  r.  Rathbone  (5  Pick.  221)  531 

Read  v.  Dawson  (2  Modern,  139)  545 


XVI 


TABLE    OF   CASES. 


Page 
Read  v.  Matteur  (Ca8.  Temp.  Hardw. 

28t))  533 

Read  v.  Smith  (1  Allen,  519)  273 

Regiua  v.  Davis  (5  Cor.  C.  C.  2-37)  380 

Regina  v.  James  (2  Cor.  C.  C.  227)  380 

Regina  r.  Wilson  (2  Cor.  C.  C.  381)  381 
Rex  I'.  Foster  (1  Russell  and  Ryan, 

412)  380 

Reynolds  v.  Clark  (1  Strange,  634)  174 

Ricii  i:  rilkinglon  (Cartliew,  171)  363 
Richards    v.  Frankum    (6   M.    and 

W.  420)  460 

Riches  v.  Briggs  (Yelverton,  4  a)  209 

Riggs  Ca.«ie  (Clayton,  24)  456 

Roekwood  v.  Feasar  (Cro.  Eliz.  262)  438 

Koper's  Case  (2  Leonard,  108)  105 
Rudder  v.  Price  ( 1  11.  Bhickstone,  647)    42 

S.\NDS  V.  Trevilian  (Cro.  Car.  193)  18 
Saunders  v.  Crawley  (1  Rolle,  112)  530 
Scott  i:  Shephard  (2  Wm.  Black- 
stone,  892)  1.57 
Selby  V.  Bardons  (3  B.  and  Ad.  2)  507 
Sexton  V.  Miles  (1  Salkeld,  22)  284 
Shannon  ;•.  Shannon  (1  Sch.  and  Le- 

froy,  324)  79 
Sieveking  i\  Dutton  (3  Com.  Bench 

Rep.  331)  488 
Simonton  v.   Barrell    (21    Wendell, 

362)  41 

Six  Carpenters'  Case  (8  Coke,  147)  27 

Slack  r.  Lyon  (9  Pick.  61)  540 

Slade's  Case  (2  Wilson,  359)  170 

Slater  v.  Baker  (4  Reports,  926)  232 

Smart  v.  Hyde  (8  M.  and  W.  723)  481 
Smith  V.   Henry  County   (15  Iowa, 

385)  344 
Smith  V.   jNIiller   (1  Term   Reports, 

475)  114 
Smith  ;;.  The  Eastern  Railroad  (35 

N.  H.  3.56)  326 

Sparhawk  v.  Bagg  (16  Gray,  583)  121 

Sparry's  Case  (5  Coke,  61  a)  382 

Staple  V.  Heydon  (6  Modern,  1)  643 
Starkey  I'.  Cheeseman  (1  Salkeld,  128)  284 
Statei'.Covenhoven  (1  Halstead,  396)  .356 
State  of  Maine  v.  Feck  (60  Maine, 

498)  357 
Stephenb  v.  Myers  (4  Car.  and  P.  349)   94 


Page 
Tatlowe  v.  Batement  (2  Levinz,  13)  388 
Taylor  v.  Markham  (Cro.  Jac,  224)  499 
Thomas  v.  Willoughby  (Cro.  Jac.  587)  33-1 
Thompson  v.  Colier  (Yelverton,  112)  403 
Thompson  v.  Harvie   (Pennington, 

894)  340 

Tindall  v.  Moore  (2  Wilson,  114)  313 

Torrence  v.  Gibbons  (5  Q.  B.  Rep. 

297)  444 

Turbervell  v.  Savage  (2  Keble,  545)  95 
Turner  i'.  Binion  (Hardress,  200)  133 


Underhill   v.   EUicombe   (1   M'C. 

and  Y.  450)  31 

Underwood  v.  Hewson  (1  Strange,  696)  93 
Uncterwood  v.  Parks  (2  Strange,  1200)  457 
Union  Iron  Co.  v.  Pierce  (Fed  Cases, 

14367)  40 


ViLLERS  V.  Mosely  (2  Wilson,  403)      317 


Walker  v.  Walker  (Holt,  328)  237 

Wallis  V.  Savil  (Nelson's  Lutwyche, 
16)  346-403 

270 

412 

20 


Walton  V.  Kersop  (2  Wilson,  354) 
Warner  i'.  Wainsford  (Hobart,  127) 
Watson  V.  M'Nairy  (1  Bibb,  3-56) 
Watton  V.  Brinth  (Y.  B.  2  Hen.  IV. 

3,  pi.  9)  222 

Weaver  v.  Ward  (Hobart,  134)  96 

Wells  V.  Wiggin  (Carter,  224)  340 

Weston  V.  Carter  (Siderfin,  9)  526 

WHieatley  v.  Lowe  (Cro.  Jac.  608)  210 

WheJpdale's  Case  (5  Coke,  241)  428 

Wilbur  V.  Gilmore  (21  Pick.  251)  383 
Wilson,  Bankrupt  (1  Sch.  and  Le- 

froy,  320)  81 

Wirram's  Case  (Xoy,  116)  319 

Witts  V.  Poleliampton  (3  Salkeld,  305)  543 

Wright  V.  Pindar  (Aleyn,  18)  372 

Wyat  V.  Avland  (1  Salkeld,  324)  537 


Yates  v.  Boen  (2  Strange,  1104) 
Young  V.  Ashburnham  (3  Leonard, 
161) 


429 


26 


CASES  ON  COMMON-LAW  PLEADING 

IN  CIYIL  ACTIONS. 


PART   I.  — PERSONAL   ACTIONS. 


CHAPTEE   I. 

ORIGINAL   WRITS    AND    PROCESS. 
A  is  to  sue  B.     What  must  A  do  ? 

The  purpose  of  the  present  work  is  to  trace  the  steps  in 
a  suit  at  common  law  ;  the  purpose  of  the  present  chapter, 
to  show  how  such  a  suit  was  begun.  The  three  great  courts 
of  England  were  the  King's  Bench,  the  Court  of  Common 
Pleas,  and  the  Exchequer.  Originally,  the  jurisdiction  of 
the  King's  Bench  was  limited,  even  on  the  civil  side  of  the 
court,  to  wrongs  committed  vi  et  armis  or  contra  2^<-icem, 
i.  e.  criminal  in  nature,  but  furnishing  a  cause  of  civil 
action.  Hence  actions  on  contracts,  or  for  recovering  one's 
goods  not  wTongfully  taken,  were  not  for  this  court.  They 
lacked  the  vital  element  of  crime.  The  Court  of  Ex- 
chequer, in  its  origin,  concerned  itself  only  with  cases 
where  the  defendant  was  deforcing  the  crown  of  its  rev- 
enue, its  jurisdiction  therefore  being  miserably  narrow ;  it 
guarded  king's  gold,  not  subject's  gold.  The  Court  of 
Common  Pleas  alone  in  early  times  exercised  original 
jurisdiction  in  all  civil  actions  whatever  between  subject 
and  subject.  Years  w^ent  on,  and  the  time  finally  came 
when  both  the  Court  of  King's  Bench  and  the  Court  of 
Exchequer  grew  to  have  jurisdiction  of  all  personal  actions 
between  subject  and  subject.  How  this  occurred,  may  be 
gathered  from  the  following  pages. 


2  CASES   ON   COMMON-LAW   PLEADING. 

Each  court,  in  history,  had  its  characteristic  process.^ 
That  of  the  Common  Pleas  was  the  original  writ.  In 
theory  of  Anglo  Norman  law%  the  king  was  the  fountain 
of  all  justice.  The  original  writ  was  the  conduit  pipe 
necessary  to  transfer  jurisdiction  from  the  king  to  the 
court,  —  his  warrant  for  the  judges  to  proceed  in  a  given 
case.  "  It  expressed  the  king's  sole  right  over  the  dispen- 
sation of  justice,  a  right  which  the  king  exercised  on  his 
own  terms  until  Magna  Charta  was  extorted  from  John."  ^ 

But  in  the  Court  of  King's  Bench,  where  anciently  the 
king  himself  sat,  where  later  his  own  judges  sat,  there  was 
no  need  for  an  original  writ  to  give  the  court  cognizance 
of  any  misdemeanor  in  the  county  where  the  court  was. 
The  court  acted  by  process  of  its  own,  called  a  bill  of 
Middlesex.^ 

In  the  Exchequer,  since  the  king  was  always  plaintiff, 
calling  upon  his  debtors  to  pay,  there  was,  of  course,  no 
original  writ.  In  the  development  of  the  Exchequer,  its 
characteristic  process  became  the  writ  of  quo  minus. 

Hence  A.,  who  is  to  sue  B.,  must  adapt  his  action  to  the 
proper  court,  and  choose  the  proper  process. 

And  first,  what  is  an  action  ? 

"  Nota,  there  be  two  kind  of  actions,  viz.  one  that  concern  the 
pleas  of  the  crowne,  2Jlacita  coronce,  or  placita  criminalia ;  another 
that  concern  common  pleas,  placita  communia,  seu  civilia.  Of  that 
which  concerneth  pleas  of  the  crowne,  Littleton  speaketh  hereafter 
in  this  chapter.  Of  actions  concerning  common  pleas,  Littleton 
speaketh  in  this  place.  And  these  are  threefold  (that  is  to  say), 
reall,  personall,  and  mixt.  Placitorum  aliud  personate,  aliud  reale, 
aliud  mixtum.  Or,  Actionum  qucedam  sunt  in  rem  qticedam  in 
personam,  et  qucedam  mixtce. 

"  And  generally,  actio  is  defined,  Actio  nihil  aliud  est  quam  jus 
prosequendi  injudicio  quod,  sihi  dehetur.  Or,  Action  n'est  auter  chose 
que  loyall  demande  de  son  droits  * 

1  To  what  extent  the  original  writs,  in  later  times,  prevailed  in  the  King's  Bench 
and  the  Exchequer  will  hereinafter  appear. 

2  Big.  Hist.  Proc.  199. 

8  Becan.se  the  court  usually  sat  in  the  County  of  Middlesex. 
*  Co.  Litt.  285  a. 


ORIGINAL   WPxITS   AND   PROCESS.  3 

"  The  most  natural  and  perspicuous  way  of  considering  the  sub- 
ject before  us  will  be  (I  apprehend)  to  pursue  it  in  the  order 
and  method  wherein  the  proceedings  themselves  follow  each  other, 
rather  than  to  distract  and  subdivide  it  by  any  more  logical  anal- 
ysis. The  general,  therefore,  and  orderly  parts  of  a  suit  are  these : 
1.  The  original  writ ;  2.  The  process ;  3.  The  pleadings ;  4.  The 
issue  or  demurrer;  5.  The  trial;  6.  The  judgment  and  its  inci- 
dents ;  7.    The  proceeding  in  nature  of  appeals  ;  8.    The  execution."  ^ 


AN  ORIGINAL  WRIT. 

A    WRIT    OF    RIGHT    PATENT.^ 

**  Charles,  etc.  to  T.  M.  greeting:  We  comraand  you,  that  without 

delay  you  do  full  right  to  T.  B.  of  one  messuage  and  ten  acres  of  land 

with  the  appurtenances  in  B.  which  he  claims  to  hold  of  you  by  the  free 

service  of  one  penney  per  annum  for  all  service  ;  of  which  J.  S.  deforc- 

eth  him  ;  and  unless  you  will  do  this,  let  the  sheriff  of  C.  do  it,  that  we 

may  hear  no  more  clamor  thereupon  for  want  of  right. 

"Witness,  etc." 

Heg,  f.  1  a. 

"  First,  then,  of  the  original,  or  original  writ ;  which  is  the  begin- 
ning or  foundation  of  the  suit.  When  a  person  hath  received  an 
injury,  and  thinks  it  worth  his  while  to  demand  a  satisfaction  for 
it,  he  is  to  consider  with  himself,  or  take  advice,  what  redress  the 
law  has  given  for  that  injury;  and  thereupon  is  to  make  applica- 
tion or  suit  to  the  crown,  the  fountain  of  all  justice,  for  that 
particular  specific  remedy  which  he  is  determined  or  advised  to 
pursue.  As,  for  money  due  on  bond,  an  action  of  debt ;  for  goods 
detained  without  force,  an  action  of  detinue  or  trover ;  or  if  taken 
with  force,  an  action  of  trespass  vi  et  armis  ;  or  to  try  the  title  of 
lands,  a  writ  of  entry  or  an  action  of  trespass  in  ejectment ;  or  for 
any  consequential  injury  received,  a  special  action  on  the  case.  To 
this  end  he  is  to  sue  out,  or  purchase  by  paying  the  stated  fees,  an 
original,  or  original  writ,  from  the  court  of  chancery,  which  is  the 
offichia  justitfv,  the  shop  or  mint  of  justice,  wherein  all  the  king's 
writs  are  framed.  It  is  a  mandatory  letter  from  the  king,  in  parch- 
ment, sealed  with  his  great  seal,  and  directed  to  the  sheriff  of  the 
county  wherein  the  injury  is  committed,  or  supposed  so  to  be,  re- 
quiring him  to  command  the  wrong  doer  or  party  accused  either  to 
do  justice  to  the  complainant,  or  else  to  appear  in  court  and  answer 
the  accusation  against  him.  Whatever  the  sheriff  does  in  pursu- 
it Blackstone's  Cora.  272.  *  Booth  R.  Ac.  88. 


4  CASES    ON    COMMON-LAW   TLEADING. 

mice  of  this  writ,  he  must  return  or  certify  to  the  court  of  common 
pleas,  together  with  the  writ  itself ;  which  is  the  foundation  of  the 
jurisdiction  of  that  court,  being  the  king's  warrant  for  the  judges 
to  ])roceed  to  the  determination  of  the  cause.  For  it  was  a  maxim 
introduced  by  the  Normans,  that  there  should  be  no  proceedings 
in  common  pleas  before  the  king's  justices  without  his  original 
writ;  because  they  held.it  unfit  that  those  justices,  being  only  the 
substitutes  of  the  crown,  should  take  cognizance  of  any  thing  but 
what  was  thus  expressly  referred  to  their  judgment.  However,  in 
small  actions  below  the  vahie  of  forty  shillings,  which  are  brought 
in  the  court  baron  or  county  court,  no  royal  writ  is  necessary ;  but 
the  foundation  of  such  suits  continues  to  be  (as  in  the  times  of  the 
Saxons)  not  by  original  writ,  but  by  plaint;  that  is  by  a  private 
memorial  tendered  in  open  court  to  the  judge,  wherein  the  party 
injured  sets  forth  his  cause  of  action;  and  the  judge  is  bound  of 
common  right  to  administer  justice  therein,  without  any  special 
mandate  from  the  king.  Now,  indeed,  even  the  royal  writs  are 
held  to  be  demandable  of  common  right,  on  paying  the  usual  fees ; 
for  any  delay  in  the  granting  of  them,  or  setting  an  unusual  and 
exorbitant  price  upon  them,  would  be  a  breach  of  Magna  Carta, 
c.  29, '  nulli  vendemus,  nnlli  negabimus  aut  differemus,  justitiam  vel 
rectum.' "  ^ 

BILL   OF   ^IIDDLESEX   AND   LATITAT   THEREUPON   IN 

THE   COURT   OF   KING'S   BENCH. 

Presented  3  Blackstone's  Commentaries,  362  (App.). 

Middlesex,  >  The  sheriff  is  commanded  that  he  take  Charles  Long, 
to  wit.  I  late  of  Bnrford  in  the  County  of  Oxford,  if  he  may  be 
found  in  his  bailiwick,  and  him  safely  keep,  so  that  he  may  have  his 
body  before  the  Lord  the  King  at  Westminster,  on  "\^'ednesday  next 
after  fifteen  days  of  Easter,  to  answer  William  Burton,  gentleman,  of 
a  plea  of  trespass,  [and  also  to  a  bill  of  the  said  William  against  the 
aforesaid  Charles,  for  two  hundred  pounds  of  debt,  according  to  the 
custom  of  tlie  court  of  the  said  Lord  the  King,  before  the  King  himself 
to  be  exhibited  ;]  and  that  he  have  there  then  this  precept. 

The  witliin-named  Charles  Long  is  not  found  in  my  bailiwick. 

George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faitli,  and  so  forth  ;  to  tlie  sheriff 
of  Berkshire,  greeting.  Whereas  we  lately  commanded  our  sheriff  of 
INIiddlesex  that  he  should  take  Charles  Long,  late  of  Burford,  in  the 
county  of  Oxford,  if  he  might  be  found  in  his  bailiwick,  and  him  safely 
keep,  so  that  he  might  be  before  us  at  Westminster,  at  a  certain  day 
1  3  Blackstoue's  Com.  272. 


ORIGINAL    WRITS   AND    PROCESS.  5 

now  past,  to  answer  unto  William  Burton,  gentleman,  of  a  plea  of  tres- 
pass ;  [and  also  to  a  bill  of  the  said  William  against  the  aforesaid 
Charles,  for  two  hundred  pounds  of  debt,  according  to  the  custom  of 
our  court,  before  us  to  be  exhibited  ;]  and  our  said  sheriff  of  Middle- 
sex at  that  day  returned  to  us  that  the  aforesaid  Charles  was  not 
found  in  his  bailiwick;  whereupon  on  the  behalf  of  the  aforesaid 
AVillium,  in  our  court  before  us,  it  is  sufficient!}'  attested  that  the 
aforesaid  Charles  lurlvs  and  runs  about  in  your  county  :  therefore  we 
command  you  that  you  take  him,  if  he  may  be  found  in  your  baili- 
wick, and  him  safely  keep,  so  that  you  may  have  his  body  before  us 
at  Westminster  on  Tuesday  next  after  five  weeks  of  Easter,  to  answer 
tlie  aforesaid  William  of  the  plea  [and  bill]  aforesaid;  and  have  you 
there  then  this  writ.  Witness,  Sir  Dudley  Ryder,  Knight,  at  Westmin- 
ster, the  eighteenth  day  of  April,  in  the  twenty-eighth  year  of  our 
reign. 

By  virtue  of  this  writ  to  me  directed,  I  have  taken  the  body  of  the 
within  named  Charles  Long,  which  I  have  ready  at  the  day  and  place 
within  contained,  according  as  by  this  writ  it  is  commanded  me. 

"  In  the  king's  bench  they  may  also  (and  frequently  do)  proceed 
in  certain  causes,  particularly  of  actions  of  ejectment  and  trespass, 
by  original  writ,  with  attachment  and  capias  thereon ;  returnable, 
not  at  AVestminster,  where  the  common  pleas  are  now  fixed  in  con- 
sequence of  Magna  Carta,  hut  ' ubicunque  fuerimus  in  Anglia' 
wheresoever  the  king  shall  then  be  in  England ;  the  king's  bench 
being  removable  into  any  part  of  England  at  the  pleasure  and  dis- 
cretion of  the  crown. 

"  But  the  more  usual  method  of  proceeding  therein  is  without  any 
original,  but  by  a  peculiar  species  of  process  entitled  a  bill  of  Middle- 
sex :  and  therefore  so  entitled,  because  the  court  now  sits  in  that 
county ;  for  if  it  sat  in  Kent,  it  would  then  be  a  bill  of  Kent.  For 
though,  as  the  justices  of  this  court  have,  by  its  fundamental  con- 
stitution, power  to  determine  all  offences  and  trespasses  by  the 
common  law  and  custom  of  the  realm,  it  needed  no  original  writ 
from  the  crown  to  give  it  cognizance  of  any  misdemeanour  in  the 
county  wherein  it  resides ;  yet,  as  by  the  court's  coming  into  any 
county  it  immediately  superseded  the  ordinary  administration  of 
justice  by  the  general  commissions  of  eyre  and  of  oyer  and  terminer, 
a  process  of  its  own  became  necessary  within  the  county  where  it 
sat,  to  bring  in  such  persons  as  were  accused  of  committing  any 
forcible  injury. 

"  The  bill  of  Middlesex  (which  was  formerly  always  founded  on  a 
plaint  of  trespass  quare  clausum  /regit,  entered  on  the  records  of  the 
court)  is  a  kind  of  capias,  directed  to  the  sheriff  of  that  county,  and 


6  CASES   ON   COMMON-LAW   PLEADING. 

commanding  him  to  take  the  defendant  and  have  him  before  our 
lord  the  king  at  Westminster  on  a  day  prefixed,  to  answer  to  the 
plaintiff  of  a  plea  of  trespass. 

"  For  tliis  accusation  of  trespass  it  is,  that  gives  the  court  of  king's 
bench  jurisdiction  in  other  civil  causes,  as  was  formerly  observed  ; 
since  when  once  the  defendant  is  taken  into  custody  of  the  mar- 
shal, or  prison  keeper  of  this  court,  for  the  supposed  trespass,  he 
being  then  a  prisoner  of  this  court,  may  here  be  prosecuted  for  any 
other  species  of  injury.  Yet,  in  order  to  found  this  jurisdiction,  it 
is  not  necessary  that  the  defendant  be  actually  the  marshal's  pris- 
oner ;  for,  as  soon  as  he  appears,  or  puts  in  bail,  to  the  process,  he 
is  deemed  by  so  doing  to  be  in  such  custody  of  the  marshal  as  will 
give  the  court  a  jurisdiction  to  proceed.  And  upon  these  accounts, 
in  the  bill  or  process  a  complaint  of  trespass  is  always  suggested, 
whatever  else  may  be  the  real  cause  of  action. 

"  This  bill  of  Middlesex  must  be  served  on  the  defendant  by  the 
sheriff,  if  he  finds  him  in  that  county  ;  but,  if  he  returns  '  non  est 
inventus'  then  there  issues  out  a  writ  of  latitat  to  the  sheriff  of 
another  county,  as  Berks ;  which  is  similar  to  the  testatum  capias 
in  the  common  pleas,  and  recites  the  bill  of  Middlesex  and  the  pro- 
ceedings thereon,  and  that  it  is  testified  that  the  defendant '  latitat 
et  discurrit,'  lurks  and  wanders  about  in  Berks ;  and  therefore 
commands  the  sheriff  to  take  him,  and  have  his  body  in  court  on 
the  day  of  the  return.  But,  as  in  the  common  pleas,  the  testatum 
capias  may  be  sued  out  upon  only  a  supposed,  and  not  au  actual, 
preceding  capias  ;  so  in  the  king's  bench  a  latitat  is  usually-  sued 
out  upon  only  a  supposed,  and  not  an  actual,  bill  of  Middlesex.  So 
that,  in  fact,  a  latitat  may  be  called  the  first  process  in  the  court 
of  king's  bench,  as  the  testatum  capias  is  in  the  court  of  common 
pleas.  Yet,  as  in  the  common  pleas,  if  the  defendant  lives  in  the 
county  wherein  the  action  is  laid,  a  common  capias  suffices ;  so  in 
the  king's  bench  likewise,  if  he  lives  in  Middlesex,  the  process  must 
still  be  by  bill  of  Middlesex  only."  ^ 


WRIT   OF   QUO   MINUS   IN   THE   EXCHEQUER. 
Prksented  3  Blackstone's  Commentaries,  363  (App.). 

George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faitli,  and  so  forth  ;  to  the  sheriff 
of  Berkshire,  greeting.  We  command  you  that  j'ou  omit  not  b}-  reason 
of  any  Hberty  of  your  county,  but  that  you  enter  the  same,  and  take 
Charles  Long,  late  of  Burford,  in  the  county  of  Oxford,  gentleman, 
1  3  Blackstone's  Com.  285. 


ORIGINAL   WRITS    AND    PROCESS.  7 

wheresoever  he  shall  be  found  in  your  bailiwick,  and  him  safely  keep, 
so  that  you  may  have  his  body  before  the  Barons  of  our  Excliequer  at 
Westminster  on  the  morrow  of  the  Holy  Trinity,  to  answer  William 
Burton,  our  debtor  of  a  plea,  that  he  render  to  him  two  hundred  pounds, 
which  he  owes  him  and  unjustly  detains,  whereby  he  is  the  less  able  to 
satisfy  us  the  debts  which  he  owes  us  at  our  said  Exchequer,  as  he 
saith  that  he  can  reasonably  show  that  the  same  he  ought  to  render : 
and  have  you  there  this  writ.  Witness,  Sir  Thomas  Parker,  Knight, 
at  Westminster,  the  sixth  day  of  May,  in  the  twentyrsighth  year  of 
our  reign. 

By  virtue  of  this  writ  to  me  directed,  I  have  taken  the  body  of  the 
-within  named  Charles  Long,  which  I  have  ready  before  the  barons 
within  written,  according  as  within  it  is  commanded  me. 

"In  the  exchequer  the  first  process  is  by  writ  of  quo  minus,  in 
order  to  give  the  court  a  jurisdiction  over  pleas  between  party  and 
party.  In  which  writ  the  pLaintiff  is  alleged  to  be  the  king's  farmer 
or  debtor,  and  that  the  defendant  hath  done  him  the  injury  com- 
plained of;  quo  minus  sujficiens  cxistit,  by  which  he  is  the  less 
able  to  pay  the  king  his  rent,  or  debt.  And  upon  this  the  defend- 
ant may  be  arrested  as  upon  a  capias  from  the  common  pleas."  ^ 

In  the  Exchequer  an  action  may  also  be  commenced  by  a  venire 
facias  ad  respondendum,  which  is  in  the  nature  of  an  original  writ, 
and  is  the  process  used  in  this  court  against  peers  and  members  of 
the  house  of  commons.  On  this  writ  the  defendant  is  summoned  ; 
and  if  he  do  not  appear,  a  distringas  issues,  and  after  that,  if 
necessary,  an  alias,  pluries,  or  testatum  distringas.  Tidd's  Practice, 
67.  An  action  by  an  attorney  or  officer  of  this  court  is  commenced 
by  a  capias  of  privilege,  and  against  attorneys,  officers,  or  prisoners 
by  bill     Ibid.  68.     Archbold.     [3  Blackstone's  Com.  286  n.] 

So  much  for  an  abstract  knowledge  of  original  writs. 
But  how  were  such  writs  procured? 

A.  has  told  X,  his  attorney,  the  facts  of  his  case.     XI  wishes  to  sue 
out  an  original  writ.      What  shall  he  clof 

"  The  original  writ  is  issued  by  the  cursitor  [an  officer  of  the 
Court  of  Chancery]  who  is  so  called  from  the  writs  de  cur  so ; 
[i.  e.  the  formed  writs] ;  and  where  no  capias  [arrest  process]  lies, 
as  against  peers  or  members  of  the  house  of  commons,  or  against 
corporations  or  hundredors  on  the  statutes  of  hue  and  cry,  etc.  it  is 
necessarily  the  first  proceeding  in  the  cause.  And  where  a  capias 
lies,  but  the  defendant  absconds,  or  keeps  out  of  the  way,  so  that 

1  3  Blackstone's  Com.  286. 


8  CASES    ON    COMMON-LAW    PLEADING. 

he  cannot  be  arrested,  or  served  with  process  against  his  person, 
it  is  usual  to  sue  out  an  original  writ,  as  a  foundation  of  process 
against  his  goods,  or  in  order  to  proceed  to  outlawry.  But  in  all 
other  cases,  the  practice  is  for  the  plaintiff's  attorney  to  make  out  a 
praecipe  for  an  original  writ,  and  deliver  it  to  the  filazer,  who  there- 
i;pon  issues  the  capias  in  the  first  instance,  keeping  the  pra2cipe  as 
instructions  for  the  original  [writ],  which  is  not  in  fact  issued, 
unless  it  becomes  necessary,  in  consequence  of  a  writ  of  error,  upon 
a  judgment  by  default."     Tidd's  Practice,  96. 

Briefly,  the  original  writ  was  procured  by  the  plaintiff's 
lawyer  from  the  cursitor  upon  a  praecipe,  the  praecipe  being 
a  note  of  instructions*  as  to  the  writ  which  the  plaintiff's 
lawyer  gave  to  the  cursitor.  For  issue  of  process  sub- 
sequent to  the  original  writ,  the  attorney  had  to  go  to 
another  officer,  the  filazer.  The  comparative  importance 
of  the  praecipe  and  the  writ  are  well  illustrated  by  the  fol- 
lowing case. 

OGLETHORP  v.  MAUD. 

Reported  Hobart,  128  a. 

In  assize  between  Oglethorp  and  Maud,  the  writ  was  ad  facien- 
dum recognitionem  ilium,  which  should  have  been  illam,  and  it 
was  moved  to  have  been  amended,  and  Harrison  the  Cursitor  was 
called  into  the  Court,  who  made  oath,  that  a  note  produced  by  him 
in  court  (which  was  right)  was  the  original  note,  whereby  the  writ 
was  made,  yet  because  in  Pennington's  Assize,  11  Hen.  VIT.,  the 
like  fault  in  the  writ  would  not  be  amended,  the  Court  would  be 
advised.    [As  to  amendment  of  writs,  see  page  9,  n.] 

THE   PROCESS. 

B.,  ordered  by  original  writ  to  come  into  court  to  answer  to  -4.'s 
suit,  refuses.      What  can  A.  do  f 

"  We  have  now  to  speak  of  the  various  processes  which  the  law 
employs  in  order  to  compel  men  to  come  before  its  courts.  They 
vary  in  stringency  from  the  polite  summons  to  the  decree  of 
outlawry.  .  .  .  The  original  writ  itself  will  indicate  the  first  step 
that  is  to  be  taken,  in  other  words,  the  original  process."  But  sup- 
pose the  defendant  is  obstinate,  and  will  not  come  into  court  ? 
Then  "  the  subsequent  steps  (the  '  mesne  process ')  .  .  .  will  be 
ordered  by  'judicial'  writs  which  the  justices  issue  from  time  to 
time  as  defaults  are  committed." 


ORIGINAL   WRITS   AND   PROCESS.  » 

"  Our  readers  would  soon  be  wearied  if  we  discoursed  of  mesne 
process.  Its  one  general  characteristic  is  its  tedious  forbearance. 
Very  slowly  it  turns  the  screw  which  brings  pressure  to  bear  upon 
the  defendant.  Every  default  [i.  e.  failure  to  appear  as  commanded] 
that  is  not  essoined  [i.  e.  excused]  is  cause  for  an  amercement,  but 
the  law  is  reluctant  to  strike  a  decisive  blow.  If  we  would 
understand  its  patience,  we  must  transport  ourselves  into  an  age 
when  steam  and  electricity  had  not  become  ministers  of  the  law, 
when  roads  were  bad  and  when  no  litigant  could  appoint  an 
attorney  until  he  had  appeared  in  court.  Law  must  be  slow  that 
it  may  be  fair.  .  .  ." 

"  When  there  was  no  specific  thing  that  could  be  seized  and 
adjudged  to  the  plaintiff,  as  being  the  very  thing  that  he  demanded, 
the  law  had  at  its  command  various  engines  for  compelling  the 
appearance  of  the  defendant.  Bracton  has  drawn  up  a  scheme 
which  in  his  eyes  is  or  should  be  the  normal  process  of  com- 
pulsion ;  but  we  can  see  both  from  his  own  text  and  the  plea 
rolls  that  he  is  aiming  at  generality  and  simplicity,  and  also 
that  some  questions  are  still  open.  The  scheme  is  this:  (1)  Sum- 
mons, (2)  Attachment  by  pledges,  (3)  Attachment  by  better 
pledges,  (4)  Habeas  corpus,  (5)  A  distraint  by  all  goods  and 
chattels,  which  however  consists  in  the  mere  ceremony  of  tak- 
ing them  into  the  king's  hand;  (6)  A  distraint  by  all  goods 
and  chattels,  such  as  to  prevent  the  defendant  from  meddling 
with  them ;  (7)  A  distraint  by  all  goods  and  chattels  which  will 
mean  a  real  seizure  of  them  by  the  sheriff,  who  will  become  answer- 
able for  the  proceeds  (issues,  exitues)  to  the  king ;  (8)  Exaction 
and  outlawry."  2  Pollock  and  Maitland,  576,  589,  591,  of  Process 
in  Bracton's  Day.^ 

^  "  A  little  later  this  Habeas  Corpus  seems  to  disappear,  but  the  writ  of  Distress 
commauds  the  sheriff  (jnod  distringat,  etc  ,  et  luibeat  cor/ius,  see,  e.  g.,  Nortiiuinberlaud 
Assize  rolls,  pp.  51,  59,  60,  178,  199,  etc.  Theu  Stat.  Marll).  c.  12,  aud  Stat.  West.  1, 
c.  45,  accelerated  tiie  procedure  by  cuttiug  away  all  that  intervened  between  First 
Attaciinient  and  Grand  Distress.  Thus  we  f)ass  to  the  process  described  by  Britton, 
1,125-134.  Bracton's  sclieine  does  not  provide  for  any  '  iiuprisonnient  upou  mesne 
process' ;  the  sheriff  is  not  directed,  as  he  is  by  the  later  Capias,  to  take  the  defendant's 
body  and  keep  it  safely  ;  but  tlie  Habeas  Corpus  would,  we  suppose,  justify  tlie  sheriff 
in  arresting  the  defendant  wlieu  the  court  day  was  approaching  in  order  to  bring  him 
into  court."  2  1'.  and  M.,  591.  So  much  for  the  cumbersome  mesne  process,  —  a 
process  that  even  in  later  times  brought  almost  disgrace  upou  p]nglish  remedial  law. 
See  'i'idd's  I'ractice,  c.  9-13. 

Amendment  of  Writs.  Per  Cur.  in  King  v.  Bishop  of  Carlisle,  Barnes,  9. 
"  The  doctrine  of  amendment  of  original  writs,  by  Stat.  8  H.  VI.,is  .settled  in  the  books. 
1st.  No  amendment  of  an  original  writ  can  be  made,  unless  for  nescience  or  misprision 
of  the  clerk.     2.  There  must  be  something  to  amend  by."     Impey,  Common  I'leas,  443. 


CHAPTEE   II. 

ACTIONS    BEFORE   THE   STATUTE    OF   WESTMINSTER   II. 
Enacted  13  Edward  I.  c.  24. 

The    introductory  note    to    the    first    chapter   hmts    that 
even  personal  actions  are  of  several  kinds.     Actions  for 
wrongs  committed  vi  et  armis,  i.  e..  criminal  in  nature  but 
civil  in  remedy,  were  seen  to  be  peculiarly  adapted  in  early 
times  to  the   Court  of  King's  Bench;    while  actions  for 
recovering  one's  goods  not  taken  vi  et  armis  were  not  to 
be  brought  there.     The  natural  conclusion  is  that  rights  or 
wrongs  arising;  from  certain  sets  of  facts  were  to  be  vindi- 
cated  or  remedied,  as  the  case  might  be,  by  specific  actions 
applicable  to  specific  sets  of  facts.     Thus  :  A.  strikes  B.,  in- 
flicting damage ;  A.,  with  force  and  wrongfully,  carries  off 
from  the  possession  of  B.  his  chattel,  and  thus  inflicts  dam- 
age ;  A.  rightfully  acquires  B.'s  chattel,  as  bailee  for  a  year 
and  a  day,  and  wrongfully  but  peaceably  retains  possession 
beyond  the  bailment  period,  and  thus  by  the  deprivation 
inflicts  damage.     In  each  case  B.  will  have  an  action,  but 
since  the  actions  are  on  fundamentally  different  species  of 
facts  the  actions  will  be  different.     We  shall  later  see  why 
the  remedy  in  the  first  case  is  called  trespass  vi  et  armis  ; 
why  the  remedy  in  the  second  case  is  called  trespass  de 
bonis  asportatis  ;  and  why  tlie  remedy  in  the  third  case  is 
called  detinue.     The  present  chapter,  then,  deals  with  the 
several  actions,  or  rather,  with  a  group  of  them  historically 
classified. 

"So  great  is  the  ascendancy  of  the  Law  of  Actions  in  the  infancy 
of  Courts  of  Justice,  that  substantive  law  has  at  first  the  look  of 
being  gradually  secreted  in  the  interstices  of  procedure ;  and  the 
early  lawyer  can  only  see  the  law  through  its  envelope  of  technical 
forms."     Maine,  Early  Law  and  Custom,  389. 


ACTIONS    BEFOKE    THE    STATUTE    OF   WESTMINSTER    II.  11 

"  These  forms  [in  the  time  of  Edward  I.]  had  ceased  to  be  ade- 
quate. Thus  there  were  many  cases  that  did  not  fall  within  the 
definition  of  a  trespass,  but  for  which  it  was  proper  that  a  remedy 
should  be  furnished.  In  order  to  furnish  a  remedy,  the  first  thing 
to  be  done  was  to  furnish  a  writ."     Holmes,  Common  Law,  274. 

"  The  metaphor  which  likens  the  chancery  to  a  shop  is  trite ;  we 
will  liken  it  to  an  arnnjry.  It  contains  every  weapon  of  medieval 
warfare  from  the  two  handed  sword  to  the  poniard.  The  man  who 
has  a  quarrel  with  his  neighbor  comes  thither  to  choose  his  weapon. 
The  choice  is  large ;  but  he  must  remember  that  he  will  not  be 
able  to  change  weapons  in  the  middle  of  the  combat,  and  also  that 
every  weapon  has  its  proper  use  and  may  be  put  to  none  other. 
If  he  selects  a  sword,  he  must  know  the  rules  of  sword  play ;  he 
must  not  try  to  use  his  crossbow  as  a  mace.  To  drop  metaphor, 
our  plaintiff  is  not  merely  choosing  a  writ;  he  is  choosing  an 
action,  and  every  action  has  its  own  rules."     2  P.  and  M.  559. 

Section  I. 

DEBT. 

Probably  the  oldest  personal  action  is  debt.  We  shall 
show  how  debt  traces  its  origin  to  ancient  writs  savoring 
of  the  feudal  system  in  England  (land  writs,  real  writs) 
and  how  later  from  these  there  was  evolved  the  writ  of 
debt  for  money  loaned.  We  shall  examine  the  scope  of 
the  action  in  the  reign  of  King  Edward  I.,  1272-1307,  and 
note  in  what  classes  of  cases  it  lay.  We  shall  see  that 
the  key  note  of  delit  in  its  early  history  was  the  recovery 
of  a  specific  chattel,  or  of  a  certain  quantity  of  a  chattel 
(like  wheat  or  malt)  not  in  its  nature  specific,  or  of  a  certain 
sum  of  money.     The  latter  marks  it  to-day. 

THE   HISTORY   OF   DEBT. 

Reported  Y.  B.  12  Edward  IV.  9,  pl.  22. 

Per  Brian,  C.  J.  "  If  I  bring  cloth  to  a  tailor  to  have  a  cloak 
made,  if  the  price  is  not  ascertained  beforehand  that  I  shall  pay 
for  the  work,  he  shall  not  have  an  action  against  me." 

(a)     Origin  and  Early  History. 

"  The  history  of  the  modern  writ  [of  debt]  may  be  thus 
summarized :   1.    A  period  in  which  the  precept  was  form- 


12  CASES   ON    COMMON-LAW    PLEADING. 

less,  unsettled  material.  This  was  coming  to  an  end  in  the 
time  of  Henry  the  First.  2.  Then  a  period  tending  to  dis- 
tinct settlement  of  form,  during  which  there  is  little  differ- 
ence between  a  writ  for  the  non-performance  of  services 
due  by  reason  of  tenure  and  a  writ  for  the  non-payment  of 
money  loaned.  3.  The  time  of  Glanvill's  treatise,  when 
each  of  these  writs  assumes  definite  form  and  becomes  de 
cursu  ;  the  writ  for  money  loaned  being  the  parent  of  the 
modern  writ  of  debt."  Bigelow,  History  of  Procedure,  165. 
Writ  of  the  year  1106,  reign  of- Henry  I.,  directed  by 
the  king  to  Gotselin  de  Riparia,  warning  him  to  perform 
engagements  of  tenure  on  pain  of  distraint. 

'•'■  PrcBcipio  lit  faciatis  Faritio  abbati  de  Abbendona  tale  servUium 
defexido  quod  de  eo  et  de  abbatia  sua  tenes,  quale  fralHs  tui  fecerunt 
antecessori  suo  A."  (Athelelm,  predecessor  of  Faritius.)  ^  Quod  nisi 
feciritis,  ipse  abbas  hide  te  constringat  per  feudum  tuum. 

[I  command  that  you  do  to  Faritius  abbot  of  Abingdon  such  service 
for  the  feud  vvliich  you  hold  of  him  and  of  his  abbey,  as  the  ancestors 
of  your  brotlier  did  to  his  predecessor.  Unless  you  shall  do  this,  let 
the  abbot  himself  compel  30U  thence  by  your  feud] 

Writ  of  the  year  1110,  reign  of  Henry  I.,  granted  by 
Roger,  Bishop  of  Salisbury,  the  king's  treasurer  and  justi- 
ciar, against  two  tenants  of  the  church  of  Abingdon,  jointly 
sued  for  money-debt  by  express  contract  of  tenure. 

"  Prcecipio  vobis  quod  reddatis  ecclesice  de  Abbendona  rectitudines, 
quas  illi  debetis  de  ecclesia  vestra  Kitigstuna.  Et  nisi  feceritis^  11- 
bertus  decanus  interdiciat  dioinum  officium  apud  Kingstuna"  ^ 

[I  command  you  that  you  render  unto  the  church  of  Abingdon  the 
obligations  which  you  owe  it  on  behalf  of  the  churcli  of  Kingston. 
And  unless  you  shall  do  it,  let  Ilbert  the  dean  forbid  divine  service  at 
Kingston.] 

Writ  of  the  time  of  Glanvill,  Justiciar  to  Henry  IT., 
1154-1189,  for  money  due  by  loan,  and  of  the  specific 
coins  of  which  tlie  plaintiff  is  being  deforced,  as  of  land.^ 

^^  Rex  vicecomiti  salutem.  Prcecepe  JV.  quod  Juste  et  sine  dilatione 
reddat  R.  centum  marcas  quas  ei  debet  ut  dicit,  et  unde  queritur  quod 

1  Big.  Hist.  Proc.  IGO.  2  ibid.  iGl.  3  o  P.  and  M.  172. 


ACTIONS    BEFORE   THE    STATUTE    OF   WESTMINSTER   II.  13 

ipse  ei  iiijuste  deforciat,  et  nisi  fecerit,  summone  eum  2)er  honos  sum- 
monitores  quod  sit  coram  me  vel  justiciis  ajHtd  Westmonasterium  a 
clauso  Paschce  in  qidndecim  dies  ostensurus  qucere  nonfecerit."^ 

[The  king  to  tlie  sheriff:  health.  Command  N.  that  justly  and  with- 
out delay  he  render  unto  R.  one  hundred  marks  which  he  owes  him  as 
he  says  and  from  which  he  complains  that  he  unjustly  deforceth  him, 
and  unless  he  sliall  do  it,  summon  him  by  good  summons  that  he  may 
be  before  me  or  my  justices  at  Westminster  within  fifteen  days  from 
the  end  of  Easter  to  show  why  he  has  not  done  it.] 

(b)   Scope  and  Pro]}rietary  Nature  of  Debt  in  the  Eeign  of 
Edioard  7!" 

Reported  Y.  B.  32  Edward  I.  15.     Anno  1304. 

In  a  case  where  Robert  de  Cystone,  parson  of  the  church  of 
Great  Sayham,  demanded  certain  debts  from  Robert  de  Chastel  and 
Eleanor  his  wife,  for  money  lent  by  him  to  the  woman  while  she  was 
single,  etc. ;  Robert  and  Eleanor  said  that  Eleanor  never  borrowed 
any  money  from  him,  nor  did  they  owe  any  money  to  him,  and  that 
they  were  ready  to  deny,  etc. ;  and  they  both  did  their  law,  first  the 
husband  and  afterwards  the  wife,  with  their  twelve  compurgators. 
(This,  however,  is  remarkable.) 

Reported  Y.  B.  30  Edward  I.  235.    Anno  1302. 

Adam  Scarlett  brought  his  writ  of  Debt  against  the  prior  of 
Bodenne,  and  counted  that  tortiously  he  withheld  from  him  ten 
marks,  which,  etc.  for  cloth  bought  of  him,  &c. ;  and  he  put  forward 
an  obligation  under  seal.  —  Mutford.  He  can  claim  nothing,  for  he 
was  made  bailiff  of  the  town  of  B.  in  satisfaction  of  the  debt.  — 
Middleton.  We  did  not  take  the  office  of  bailiff  in  satisfaction,  but 
simply  to  account  to  you  for  the  issues  ;  ready,  etc.  —  And  the  other 
side  said  the  contrary  :  therefore  a  jury. 

Reported  Y.  B.  21  Edward  I.  2  Anno  1293. 

One  Adam  brought  a  writ  of  Debt  against  B.  for  sixty  shillings 
for  land  that  he  had  sold  to  him  for  the  sixty  shillings.  —  Mutford. 
Sir,  we  tell  you  that  he  enfeoffed  us  of  the  said  land  by  this  charter 
which  states  that  he  was  paid  beforehand  the  sixty  shillings  which 
he  now  demands,  and  on  the  same  contract ;  wherefore  we  pray 

1  2  Pollock  aud  Maitland,  210  (2d  ed.). 

2  For  a  case  of  debt  for  money  due  from  a  surety,  sec  Y.  B.  7  Edw.  II.  242.  Cf.  2 
Pollock  and  Maitlaud,  200;  Holmes,  Commou  Law,  264;  contra,  Ames,  8  Harv.  Law 
Kev.  252. 


14  CASES    ON    COMMON-LAW    PLEADING. 

judgment.  —  Metingham.  Do  you  wish  to  say  anything  else?  — 
Mutford.  What  have  you  to  show  the  debt?  —  Asseby.  Good 
suit.  —  Mutford.  Sir,  that  he  owes  him  a  penny  or  a  farthing  as 
he  demands,  he  (B.)  denies  against  him  and  against  his  suit,  and 
he  is  ready  to  make  (his  law)  whenever  the  court  adjudges.— 
Therefore  to  law. 

Reported  Y.  B.  21  Edward  I.  35.     Anno  1293. 

One  Adam  brought  a  writ  of  debt  against  Henry  de  Bray,  and 
counted  that  he  tortiously  detained  and  did  not  pay  to  him  forty 
marks  •  and  tortiously  for  this  that  whereas  he  delivered  to  him 
the  manor  of  N.  for  the  term  of  fifteen  years,  yielding  to  him  one 
penny  by  the  year,  with  a  provision  that,  if  he  chose  to  hold  the 
manor  over  the  fifteen  years,  he  should  pay  to  the  aforesaid  A.  and 
his  heirs  twenty  marks  by  the  year ;  and  Henry  held  the  manor 
for  two  years  after  the  fifteen  years ;  yet  he  withholds  the  forty 
marks  for  the  two  years,  whereas  the  said  Adam  has  often  come  to 
him  and  prayed  him,  etc.,  tortiously,  etc.  —  Heyman.  Sir,  inasmuch 
as  by  his  writ  and  his  count  he  demands  a  rent  issuing  out  of  a 
frank  tenement,  by  the  form  of  the  charter,  and  he  does  this  by 
a  writ  of  debt,  we  pray  judgment  if  on  this  writ  of  debt  he  ought 
to  be  answered.  —  Seleby.  We  cannot  recover  by  any  other  writ ; 
neither  can  we  distrain,  because  we  are  seised  of  the  manor. 
Judgment  if  he  ought  not  to  answer.  —  Metingham.  You  might 
have  distrained  when  the  manor  was  in  Henry's  hand.  —  Seleby. 
Sir,  the  land  lay  uncultivated  during  the  two  years.  —  Metingham. 
Why  did  you  not  bring  a  quia  cessavit,  by  virtue  of  the  statute  ? 
—  Seleby.  Because  the  manor  is  not  in  their  seisin  but  in  our 
seisin.     Judgment  if,  etc. 

(c)  Evolution   of  the   Action. 

To-day  debt  is  classed  as  a  contract  action,  and  a  con- 
tract usually  presupposes  a  promise.  The  promise  is  the 
basis  of  the  action.  To  what  extent,  if  any,  debt  in  its 
origin  was  a  contract  action,  to  what  extent  to-day  it  pre- 
serves its  ancient  characteristics,  may  be  gathered  from  the 
following  pages. 

"  The  writ  of  debt  as  given  by  Glanvill  [and  above  stated]  is 
closely  similar  to  that  form  of  writ  for  land  which  is  known  as  a 
prcecipe  in  capite.  The  sheriff  is  to  bid  the  defendant  render  to  the 
plaintiff  so  many  marks  or  shillings,  *  which,  so  the  plaintiff  says, 


ACTIONS    BEFORE   THE    STATUTE    OF   WESTMINSTER    II.  15 

the  defendant  owes  him,  and  whereof  he  unjustly  deforces  him ' ; 
and  if  the  defendant  will  not  do  this,  then  he  is  to  give  his  reason 
for  not  doing  so  in  the  king's  court.  The  writ  is  couched  in  terras 
which  wouhl  not  be  inappropriate  were  the  plaintiff  seeking  the 
restoration  of  certain  specific  coins,  of  which  he  was  the  owner, 
but  which  were  in  the  defendant's  keeping."  2  Pollock  and  Mait- 
land,  171. 

"In  its  earliest  stage  the  action  is  thought  of  as  an  action 
whereby  a  man  'recovers  '  what  belongs  to  him.  .  .  .  The  case  of 
the  unpaid  vendor  is  not  essentially  different  from  that  of  the 
lender:  he  has  parted  with  property  and  demands  a  return.  It 
enters  no  one's  head  that  a  promise  is  the  ground  of  this  action. 
No  pleader  propounding  such  an  action  will  think  of  beginning  his 
count  with  '  Whereas  the  defendant  promised  to  pay ' ;  he  will 
begin  with  '  Whereas  the  plaintiff  lent  or  (as  the  case  may  be)  sold 
or  leased  to  the  defendant.'  In  short  he  will  mention  some  causa 
dehendi  and  that  cause  will  not  be  a  promise."  2  Pollock  and 
Haitian d,  210. 

Briefly,  the  plaintiff  demanded  the  money  because  it  was  his. 

Ex.  A.  sold  his  ox  to  B.  Of  course  B.  got  title  to  the  ox  at  the 
moment  of  sale,  and  it  was  conceived  that  at  the  same  instant  A. 
got  title  to  the  unpaid  money  in  B.'s  pocket.  When  B.  refused  to 
pay,  A.  was  being  deforced  of  his  specific  coins.  To  recover  them, 
he  brought  his  action  of  debt. 

Hence,  the  action  was  not  ex  contractu^  but  proprietary.  Indeed, 
"  Any  formulated  doctrine  of  quid  pro  quo  was  still  in  the  future." 
2  Pollock  and  Maitland,  210. 

"The  action  of  debt  passed  through  three  stages.  At  first,  it 
was  the  only  remedy  to  recover  money  due,  except  when  the  lia- 
bility was  simply  to  pay  damages  for  a  wrongful  act.  It  was 
closely  akin  to  —  indeed  it  was  but  a  branch  of  —  the  action  for 
any  form  of  personal  property  which  the  defendant  was  bound  by 
contract  or  otherwise  to  hand  over  to  the  plaintiff.  If  there  was  a 
contract  to  pay  money,  the  only  question  was  how  you  could  prove 
it.  Any  such  contract,  which  could  be  proved  by  any  of  the 
means  known  to  early  law,  constituted  a  debt.  There  was  no 
theory  of  consideration,  and  therefore,  of  course,  no  limit  to  either 
the  action  or  the  contract  based  upon  the  nature  of  the  considera- 
tion received. 

"  The  second  stage  was  when  the  doctrine  of  consideration  was 
introduced  in  its  earlier  form  of  benefit  to  the  promisor.  This 
applied  to  all  contracts  not  under  seal  while  it  prevailed,  but  it 
was  established  while  debt  was  the  only  action  for  money  payable 


16  CASES   ON   COMMON-LAW   PLEADING. 

by  such  contracts.  The  precedents  are,  for  the  most  part,  prece- 
dents in  debt. 

"The  third  stage  was  reached  when  a  larger  view  was  taken  of 
consideration,  and  it  was  expressed  in  terms  of  detriment  to  the 
promisee.  This  change  was  a  change  in  the  substantive  law,  and 
logically  it  should  have  been  applied  throughout.  But  it  arose  in 
another  and  later  form  of  action,  under  circumstances  peculiarly 
connected  with  that  action.  .  .  .  The  result  was  that  the  new  doc- 
trine prevailed  in  the  new  action,  and  the  old  in  the  old,  and  that 
what  was  really  the  anomaly  of  inconsistent  theories  carried  out 
side  by  side  disguised  itself  in  the  form  of  a  limitation  upon  the 
action  of  debt. 

"  That  action  did  not  remain,  as  formerly,  the  remedy  for  all 
binding  contracts  to  pay  money,  but,  so  far  as  parol  contracts  were 
concerned,  could  only  be  used  where  the  consideration  was  a  bene- 
fit actually  received  by  the  promisor.  With  regard  to  obligations 
arising  in  any  other  way,  it  has  remained  unchanged."  Holmes, 
Common  Law,  270.^ 

"  It  follows,  from  what  has  been  written  [in  Dean  Ames's  arti- 
cle whence  the  following  is  quoted]  that  the  theory  that '  consid- 
eration is  a  modification  of  quid  'pro  quo '  is  not  tenable.  On  the 
one  hand,  the  consideration  of  indebitatus  assumpsit  was  identical 
with  quid  pro  gwo,  and  not  a  modification  of  it.  On  the  other  hand, 
the  consideration  of  detriment  was  developed  in  a  field  of  the  law 
remote  from  debt ;  and,  in  view  of  the  sharp  contrast  that  has 
always  been  drawn  between  special  assumpsit  and  debt,  it  is  im- 
possible to  believe  that  the  basis  of  one  action  w^as  evolved  from 
that  of  the  other."  Ames,  History  of  Assumpsit,  2  Harv.  L. 
Eev.  18. 

A  Word  by  Way  of  Further  N^ote  as  to  the  Development  of  Consid- 
eration in  the  Form  of  Detriment  to  the  Promisee  in  the  Action 
of  Debt. 

"  Original]}'  there  was  no  quid  pro  quo  to  create  a  debt  against  a 
defendant  if  the  benefit  was  conferred  upon  a  third  person,  aUhough 
at  the  defendant's  request.   .   .  .   [Later,]  it  became  a  settled  rule  that 

1  It  is  no  part  of  the  .scheme  of  the  present  work  to  enter  into  a  discussion  of  the 
merits  of  tlie  controversy  between  great  writers  as  to  conflicting  theories  of  the  origin 
of  consideration  in  the  English  law  of  contracts.  To  do  so  would  be  presumptuous  on 
the  part  of  the  editor,  and  confusing  to  the  student.  More,  it  would  be  an  unwarrant- 
able trespass  upon  the  field  of  substantive  law.  But  the  student  has  a  right  to  know 
that  there  is  such  a  conflict.  Hence  he  should  read  the  above-quoted  words  of  Mr. 
Justice  Holmes  in  the  light  of  the  following  words  of  Dean  James  Barr  Ames. 


ACTIONS    BEFORE    THE    STATUTE   OF   WESTMINSTER   II,  17 

whatever  would  constitute  a  quid  pro  quo^  if  rendered  to  the  defendant 
himself,  would  be  none  the  less  a  quid  pro  quo^  though  furnished  to  a 
third  person,  provided  that  it  was  furnished  at  the  defendant's  request, 
and  that  the  third  person  incurred  no  liability  therefor  to  tlie  plaintiff. 
.  .  .  But  it  is  an  indispensable  condition  of  the  defendant's  liability  in 
Debt  in  cases  where  another  person  received  the  actual  benefit  that  this 
other  person  should  not  himself  be  liable  to  the  plaintiff  for  the  benefit 
received.  For  in  that  event  the  third  person  would  be  the  debtor,  and 
one  quid  pro  quo  cannot  give  rise  to  two  distinct  debts."  Ames,  Parol 
Contracts  Prior  to  Assumpsit,  8  Harv.  L.  Rev.  262,  263. 

The  above  may  be  io\\.oyfQdi  pari  passu  in  the  following  cases. 

Reported  Y.  B.  9  Henht  V.  14,  pl.  23. 
Ancient  rule  as  to  detriment  a  consideration  in  debt. 

One  man  brought  an  action  of  debt  against  another  and  declared  by 
Strange  that  on  such  a  day  and  year  and  place  he  had  recovered  a 
debt  of  ten  pounds  in  the  Exchequer  of  our  lord  the  king  at  West- 
minster against  one  T.  and  the  defendant  came  to  him  in  the  same 
Exchequer,  and  said  to  the  plaintiff  if  he  would  release  execution 
against  this  same  T.  that  then  he  would  become  debtor  to  him  of  the 
same  ten  pounds  by  virtue  of  which  agreement  he  released  to  T.  the 
execution,  which  is  of  record,  and  so  he  is  become  debtor  to  us,  etc. 

Westbury.  You  see  well  how  he  hath  shown  how  if  he  would  release 
the  execution  to  the  said  T.  that  then  he  would  become  debtor,  the 
which  is  not  sufficient  matter  in  law  to  charge  him,  for  which  judg- 
ment, etc.,  and  upon  this  demurrer. 

Cokaine.  To  my  understanding  the  matter  is  not  half  sufficient. 
Qucere,  Ex,  nudo  patco  non  oritur  actio,  etc.,  such  is  the  opinion,  etc. 

Reported  Y.  B.  37  Henry  VI.  9,  Pl.  18.i 

Later  rule. 

Per  Moyle,  J.  "If  I  say  to  a  surgeon  that  if  he  will  go  to  one  J. 
who  is  ill,  and  give  him  medicine  and  make  him  safe  and  sound,  he 
shall  have  100  shillings,  now  if  the  surgeon  gives  J.  the  medicines  and 
makes  him  safe  and  sound,  he  shall  have  a  good  action  [debt]  against 
me  for  the  one  hundred  shillings,  and  still  the  thing  is  to  another  and 
not  to  the  defendant  himself,  and  so  he  has  not  quid  pro  quo,  but  the 
same  in  effect." 

1  The  case  is  long.     Only  a  brief  quotation  is  given,  but  it  illustrates  the  point. 


18  CASES    ON   COM.MON-LAW    PLEADING. 

SANDS  V.   TREVILIAN. 
In  the  King's  Bench.     1629. 
Reported  Choke's  Charles,  193. 

To  make  defendant  liable  in  debt  when  another  received  the  actual  benefit, 
that  other  should  not  be  liable  to  plaintiff. 

Error  of  a  judgment  in  the  common  pleas  ;  where  Trevilian,  being  an 
attorney,  brouglit  an  attachment  of  privilege  against  Sands,  and  de- 
manded against  him  debt  of  ten  pounds  ;  and  declares,  That  he  being 
an  attorne3-  there,  the  said  Sands  retained  him  to  prosecute  a  suit  in 
the  common  pleas  betwixt  one  Symms  and  Worlich,  and  desired  the 
plaintiff  to  be  attorney  for  Worlich,  and  promised  to  pay  him  all  his 
fees,  and  all  that  he  should  la}'  out  to  counsel  and  officers  of  the  court 
in  that  suit ;  and  shows,  that  he  laid  out  such  sums,  which  amount  to 
the  mone}-  demanded  ;  whereupon  he  brought  this  action. 

The  defendant  then  pleaded  nil  debet,  and  found  against  him,  and 
judgment  for  the  plaintiff.  Error  was  now  assigned.  That  in  this  case 
deljt  lies  not  against  him  who  so  entreated  him  to  be  attorne}' ;  for 
there  is  no  contract  between  them,  nor  hath  he  any  quid  pro  quo;  but 
he  ought  to  have  had  an  assumpsit  (because  he  did  it  at  his  request), 
if  he  for  whom  he  is  retained  doth  not  pay  him  his  fees.  — And  thereto 
agreed  all  the  court ;  but  if  he  should  have  debt  the}'  doubted. 

But  Rolls,  for  the  defendant,  in  the  writ  of  error,  showed,  that  he 
well  might  bring  an  action  of  debt,  because  he  retained  him,  which  is 
a  consideration  in  itself;  and  he  relied  upon  37  Hen.  VI.  pi.  10,  if  one 
entreat  a  carpenter  to  make  such  a  thing  for  another,  or  to  serve  an- 
other for  such  a  time,  and  proraiseth  him  ten  pounds,  debt  lies;  so  17 
Edw.  IV.  pi.  b,  if  one  promise  one  hundred  pounds  if  he  will  marr}'  his 
daughter,  he  marries  at  his  request,  etc.  And  he  showed  a  precedent, 
Bradford  v.  Woodhouse,  Cro.  Jac.  520,  wherein  it  was  adjudged  and 
affirmed  in  a  writ  of  error,  that  debt  lies.  And  he  said  there  was  a 
difference  where  one  is  retained  generally  for  another  with  such  a 
promise  to  i)a3'  his  fees,  and  as  much  as  he  should  expend  in  the  suit, 
there  debt  lies :  but  if  I  retain  one  to  be  attorney  for  another,  and 
promise  if  the  other  doth  not  pay,  that  I  will  pav,  there  if  the  party  for 
whom  the  retainer  is  doth  not  pay,  an  action  of  the  case  lies  against  me 
upon  m}'  promise,  and  not  an  action  of  debt ;  but  here  an  action  of 
debt  lies. 

But  all  the  court  conceived,  that  no  action  of  debt  lies  here,  but  an 
action  upon  the  case  only  :  for  the  retainer  being  for  another  man,  and 
be  being  attorne}'  for  another  man  who  agreed  to  that  retainer,  there 
is  no  cause  of  debt  betwixt  him  who  retained  and  the  attorney,  and  no 
contract  nor  consideration  to  ground  this  action  ;  and  he  who  is  so  re- 
tained  may  well  have  debt  for  his  fees  against  him  for  whom  he  was 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER    II.  19 

retained,  he  having  agreed  thereto;  wherein  there  cannot  be  any  wager 
of  law ;  but  against  tlie  defendant,  who  is  a  stranger  to  the  suit,  and 
at  whose  request  he  took  upon  him  to  be  attorney,  debt  lies  not,  as  27 
Hen.  VIII.  pi.  24  ;  and  in  the  case  of  Rolls  v.  Germyn  (Cro.  Eliz.  425, 
Moor,  366)  it  was  so  resolved.  Whereupon  it  was  adjudged,  that  the 
first  judgment  should  be  reversed. 

Richardson,  Chief  Justice,  and  Hutton  and  Harve}-,  justices  of  the 
common  pleas,  being  moved  herein,  said,  that  this  point  was  never 
moved  before  them  ;  and  they  were  of  the  same  opinion,  that  debt  lies 
not,  but  only  an  action  on  the  case. 


HARRIOT  V.  LISTER. 

In  the  Common  Pleas.     1762. 
Reported  2  Wilson,  141. 
One  quid  pro  quo  cannot  give  rise  to  two  debts. 

Case  upon  eight  several  counts  in  assumpsit,  upon  the  general 
issue  there  was  a  general  verdict  and  damages  given  for  the  plain- 
tiff upon  all  the  counts.  And  now  it  was  moved  in  arrest  of  judg- 
ment that  one  of  the  counts  was  bad,  and  therefore  as  entire 
damages  were  taken  upon  this  count  as  well  as  the  rest,  judgment 
ought  to  be  arrested ;  the  count  objected  to  runs  thus  :  "  Whereas 
James  Lister  (such  a  day  and  year,  at  such  a  place)  was  indebted 
to  Thomas  Marriott  in  £20  for  the  like  sum  before  that  time  lent 
and  advanced  by  the  said  Thomas  to  James  Dalrymple,  at  the 
special  instance  and  request  of  the  said  James  Lister,  and  being  so 
indebted,  he  the  said  James  Lister  in  consideration  thereof  after- 
ward, to  wit,  at  such  a  time  and  place,  promised  to  pay  to  the 
plaintiff  the  said  £20  when  requested."  Per  Curiam.  The  word 
lent  is  a  technical  term,  and  no  man  can  be  indebted  to  another  for 
money  lent,  unless  the  money  be  actually  lent  to  that  person  him- 
self; but  this  count  alleges  that  the  defendant  is  indebted  to  the 
plaintiff  for  money  lent  to  a  stranger  James  Dalrymple.  Now 
James  Dalrymple  is  certainly  indebted  to  the  plaintiff,  because  the 
money  was  lent  to  James  Dalrymple,  and  the  law  raises  the  promise 
which  is  not  necessary  to  be  proved ;  therefore  if  James  Dalrymple 
is  indebted  to  the  plaintiff  for  this  sum  lent  to  him,  the  defendant 
cannot  be  also  indebted  to  him  for  it,  because  there  cannot  be  a 
double  debt  upon  a  single  loan.  This  is  a  special  undertaking  or 
promise  to  pay  a  sum  of  money  lent  by  the  plaintiff  to  a  stranger, 
which  the  law  does  not  raise,  and  therefore  such  special  promise 
is  traversable,  and  must  be  proved;  but  upon  an  rudcbitatus 
assumpsit  for  money  lent  to  a  defendant  the  law  raises  the  promise, 
which  is  not  traversable,  and  need  not  be  proved.  In  short  it  is 
absurd  to  affirm  A.  is  indebted  to  B.  for  money  lent  to  C,  for  the 


20  CASES   ON    COMMON-LAW    PLEADING. 

same  money  cannot  be  lent  to  two  persons  severally ;  and  so  is 
1  Salk.  Jiiiteher  against  Andrews.  And  the  judgment  was  arrested. 
Hewitt,  Serjeant,  for  the  defendant,  Davy  and  Burland,  Serjeants, 
for  the  plaintiff. 

CHARACTEKISTICS   OF  DEBT. 

So  much  for  the  ancestry  of  debt.  We  now  come  from 
the  genealogy  of  the  action  to  the  action. 

The  following  cases,  each  illustrating  some  element  of 
the  definition  of  debt,  make  its  characteristics  plain. 

"Debt  is,  in  some  respects,  a  more  extensive  remedy  for  the 
recovery  of  money  than  assumpsit  or  covenant ;  for  assumpsit  is 
not  sustainable  upon  a  specialty,  and  covenant  does  not  lie  upon  a 
contract  not  under  seal ;  whereas  debt  lies  to  recover  money  due 
upon  legal  liabilities;  or  upon  simple  contracts  express  or  implied, 
whether  verbal  or  written ;  and  upon  contracts  under  seal,  or  of 
record ;  and  on  statutes  by  a  party  aggrieved  or  by  a  common 
informer ;  whenever  the  demand  is  for  a  sum  certain,  or  is  capable 
of  being  readily  reduced  to  a  certainty."     Chitty  on  Pleading,  121. 

Taking  Blackstone's  definition  (below  quoted  by  Judge 
Bibb)  as  a  basis  we  shall  analyze  the  characteristics  of  debt. 

"THE   LEGAL  ACCEPTATION   OF   DEBT   IS  A   SUM 
OF   MONEY,"   ETC. 

WATSON  AND   M'CALL  v.  M'NAIRY. 
Court  of  Appeals,  Kentucky,  Spring  Term.     1809. 
Reported  1  Bibb,  356. 
Debt  does  not  lie  for  a  specific  chattel. 

Opinion  of  the  court  by  Judge  Bibb. 

In  an  action  of  debt,  M'Nairy  declared  upon  a  writing  under 
seal,  dated,  etc.,  by  which  the  defendants,  Watson  and  M'Call, 
bound  themselves  to  pay  him  "in  the  month  of  June,  ensuing  the 
date,  one  horse,  at  the  value  of  thirty  pounds." 

He  averred  the  defendants  "  had  not  delivered  the  horse  in  June 
(although  his  residence  in  Fayette  was  well  known  to  them),  nor 

upon  demand   on   the day  of  ,  in   the   year ,"  etc. 

whereby  an  action  accrued  to  him  to  demand  and  have  the  said 


ACTIONS    BEFORE    THE   STATUTE    OF   WESTMINSTER   11.  21 

sum  of  £30  in  money ;  and  then  assigns  breach  in  non-payment  of 
the  money.  .  .  . 

[Judgment  was  rendered  for  the  plaintiff  in  the  sum  of  £30  for 
the  debt,  £4  Is.  damage,  and  costs.  To  this  judgment  the  defend- 
ants therein  now  brought  this  writ  of  error.  —  Ed.] 

The  sole  question  is,  did  the  action  of  debt  lie  upon  the  obliga- 
tion as  declared  upon  ? 

Blackstone,  in  his  Commentaries,  3  vol.  p.  153,  says,  "  the  legal 
acceptation  of  debt  is  a  sura  of  money  due  by  certain  and  express 
agreement,  where  the  quantity  is  fixed  and  specific,  and  does  not 
depend  on  any  subsequent  valuation  to  settle  it.  The  non-payment 
of  these  is  an  injury,  for  which  the  proper  remedy  is,  by  action  of 
debt,  to  compel  the  performance  of  the  contract,  and  recover  the 
special  sum  due."  So  in  Comyn's  Digest,  title  debt,  2  vol.  p.  637, 
it  is  said,  "Debt  lies  upon  every  express  contract  to  pay  a  sum 
certain."  And  herewith  agrees  the  decision  in  4  Coke,  Slade's 
Case.  In  Bacon's  Abridg.  title  debt,  it  is  defined  as  an  action 
founded  upon  an  express  or  implied  contract,  in  which  the  cer- 
tainty of  the  sum  or  duty  appears,  and  "  therefore  the  plaintifi"  is 
to  recover  the  same  in  numero,  and  not  to  be  repaired  in  damages  " 
by  the  jury,  as  in  those  actions  sounding  in  damages.  In  Esp. 
Nisi  Prius,  p.  172,  the  same  definition  is  given,  and  it  is  again  said 
the  plaintiff  in  the  action  is  to  recover  in  numero  the  sura  he  goes 
for,  and  not  in  damages.  The  great  essentials  in  the  action  of 
debt  are,  that  the  contract  be,  first,  for  money;  secondly,  a  sum 
certain ;  and  thirdly,  specifically  recoverable.  That  the  first  and 
third  members  of  this  definition  cannot  apply  to  this  contract,  is 
clear  at  first  blush.  The  contract  is  not  for  money,  but  a  horse; 
and  as  that  horse  is  uncertain,  described  only  by  price  or  value,  the 
contract  cannot  be  specifically  enforced  by  a  judgment.  For  being 
so  indefinite,  as  equally  to  apply  to  every  horse  of  such  value,  an 
action  in  the  detinet,  that  is  to  say  of  detinue,  would  not  lie,  and 
that  action  is  the  only  one  in  which  a  specific  judgment  for  prop- 
erty can  be  rendered.  That  the  second  member  of  the  definition 
does  not  apply,  is  perhaps  not  so  self-evident,  but  not  less  true. 
That  the  sum  mentioned  in  the  writing  is  only  descriptive  of  the 
property,  and  not  necessarily  the  extent  of  the  recovery,  seems  not 
to  be  questioned.  That  tlie  recovery  in  case  of  a  failure  to  deliver 
the  horse  ought  not  to  fall  short  of  the  value  at  which  he  was  to 
have  been  delivered,  will  be  readily  granted.  But  yet  a  greater 
sum  might  be  recovered,  and  the  plaintiff  in  the  action  below  has 
actually  obtained  an  assessment  of  extra  damages.  The  recovery, 
however,  does  not  arise  out  of  a  contract  to  pay  tlie  amount  in 


22  CASES    ON   COMMON-LAW   PLEADING. 

money,  as  the  declaration  has  supposed,  but  sounds  in  damages  for 
the  breach  of  a  contract,  being  the  only  relief  which  the  forms  of 
proceeding  in  our  law  are  competent  to  give  in  a  contract  for  such 
an  indefinite  property.  If,  upon  failure  to  pay  the  horse,  the  de- 
mand became  instanter  a  liquidated  demand  for  money,  as  is  sup- 
posed, then  being  due  by  a  specialty,  the  interest  would  immediately 
attach  as  a  legal  consequence.  But  that  the  latter  is  not  the  oper- 
ation of  law,  and  that  the  action  sounds  in  damages,  in  which  a 
jury  may  or  may  not  give  interest,  was  decided  by  the  court,  at 
the  Spring  term,  1807,  in  the  case  of  Henderson  v.  Stainton. 
Hard.  118.  That  decision  was  given  after  solemn  argument,  and 
the  reasons  of  the  decision  need  not  be  here  repeated. 

As  this  question  is  of  considerable  expectation,  much  agitated, 
...  we  have  looked  into  the  authorities,  and  find  the  judges  and 
lawyers,  who  have  treated  of  the  action  of  debt,  bearing  uniform 
and  harmonious  testimony,  concurring  in  the  definitions  before 
given.  The  numerous  examples  of  cases  in  which  debt  for  money 
will  lie,  put  by  Comyns  in  his  digest  before  quoted,  as  well  as  by 
others,  are  all  of  contracts  or  agreements  express  or  implied,  or 
otherwise  accruing  for  money,  certainly  due,  a  sum  recoverable  in 
numero,  not  sounding  in  damages. 

We  have  found  a  report  of  a  case  seemingly  variant  from  the 
principles  before  laid  down.  This  is  contained  in  a  loose  note  to 
Bacon's  Abridgment,  title,  debt,  (A),  for  which  the  annotator  refers 
to  And.  117.  We  would  gladly  have  examined  the  case,  but  have 
not  been  able  to  find  the  book  referred  to,  and  must  therefore  be 
content,  for  the  present,  w^ith  the  statement  (such  as  it  is)  in  the 
note  before  mentioned.     It  is  in  the  words  and  figures  following : 

"  If  one  makes  a  bill  to  another  in  these  words.  Memorandum  — 
I  owe  A.  B.  £20,  to  be  paid  in  watches  ;  an  action  of  debt  must 
be  brought  for  the  money,  and  not  an  action  for  the  watches,  for 
the  number  of  watches  is  not  certain." 

That  the  note  itself  is  a  very  loose  abstract  of  the  case  referred 
to,  or  the  case  very  loosely  reported,  or  that  the  decision  itself,  if 
truly  reported,  is  a  very  loose  one,  is  clearly  demonstrable.  First. 
The  argument  of  the  case  is,  that  the  action  would  not  lie  for  the 
watches,  because  the  number  of  watches  is  uncertain.  But  sup- 
pose the  number  was  certain,  say  four,  would  trover  or  detinue  lie 
for  four  watches  without  other  description  of  them  ?  clearly  not : 
for,  after  the  number  was  fixed,  the  uncertainty  and  want  of  iden- 
tity would  be  equally  as  fatal  as  before.  Again,  the  argument  is, 
because  an  action  for  the  watches  would  not  lie,  therefore  "debt 
must."     Surely  there  is  no  such  imperative  consequence :  case  or 


ACTIONS    BEFOEE   THE    STATUTE    OF   WESTMINSTER    II.  23 

covenant,  according  to  the  predicament  of  the  writing,  would  be  a 
more  appropriate  action  than  debt.  If  any  rational  deduction  can 
be  drawn  from  the  citation,  it  is  nothing  more  than  this  :  that  the 
watches  could  not  be  recovered  in  kind,  for  want  of  a  certain  de- 
scription to  identify  them  in  detinue,  and  therefore  that  the  action 
must  go  for  money.  That  the  action  must  necessarily  be  in  debt, 
would  be  an  illegal  and  illogical  conclusion.  Therefore,  some 
meaning  must  be  attached  to  et  cetera  after  the  word  debt ;  and 
according  to  the  latitude  and  examples  given  by  Coke  in  his  ex- 
planations in  like  cases,  that  is  implied  by  "  etc."  which  the  proper 
doctrines  of  the  law,  and  the  consistency  thereof  may  require.  This 
being  supplied,  the  sentence  should  be  read,  "  an  action  of  debt,  or 
rather  of  case  or  covenant,  must  be  brought  for  the  money."  At 
any  rate,  we  consider  the  testimony  of  a  judge  or  reporter,  whose 
mere  dicta  are  so  loosely  and  carelessly  thrown  together,  to  be 
totally  insufficient  to  prove  the  law  is  so,  in  opposition  to  a  host  of 
lawyers  and  judges  who  have  testified  to  the  contrary. 

The  result  from  Slade's  Case,  before  cited,  p.  92,  4  Coke,  is,  that 
actions  of  debt  are  founded  on  contract,  in  which  the  plaintiff  sets 
forth  his  demand  in  certainty,  and  insists  upon  being  restored  to  it 
i)i  numero.  The  doctrine  seems  to  be  clearly  settled,  that  debt 
will  not  lie  but  where,  according  to  established  forms  and  prece- 
dents, judgment  can  be  rendered  for  the  very  thing  contracted  for, 
and  not  for  damages  only.  And  proceeding  on  the  same  principle, 
Blackstone,  in  his  Commentaries,  3  vol.  pp.  155-6,  after  saying  the 
writ  shall  be  in  the  debet  and  detinet,  and  sometimes  in  the  detinet 
only,  thus  emphatically  says :  "  So  also  if  the  action  be  for  goods, 
for  corn,  or  an  horse,  the  writ  shall  be  in  the  detinet  only;  for 
nothing  but  a  sum  of  money,  for  which  I  (or  my  ancestors  in  my 
name)  have  personally  contracted,  is  properly  considered  as  my 
debt.  And,  indeed,  a  writ  of  debt  in  the  detinet  only,  for  goods 
and  chattels,  is  neither  more  nor  less  than  a  mere  writ  of  detinue, 
and  is  followed  by  the  very  same  judgment." 

Suppose  the  defendants  below  had  offered  a  plea  of  tender  of 
thirty  pounds,  in  money,  in  the  month  of  June,  would  it  have  been 
any  answer  to  the  action  ?  The  obligors  had  contracted  to  deliver 
a  horse,  and,  therefore,  had  no  lawful  excuse  in  a  tender  of  money ; 
the  obligee  had  contracted  for  a  horse,  and  could  not  have  refused 
the  horse,  if  tendered  in  time,  and  demanded  to  have  money. 

Upon  the  whole,  we  consider  that  the  action  of  debt  on  the 
obligation  will  in  no  shape  lie  ;  not  in  the  detinet  only,  or  in  detinue, 
because  the  horse  was  not  certain,  nor  marked  individually  by  con- 
tract, so  that  judgment  could  not  be  given  for  the  thing  specifically ; 


24  CASES   ON   COMMON-LAW    PLEADING. 

not  in  the  debet  and  detinet,  because  not  money,  but  a  horse  was 
contracted  for.  The  action  should  have  been  in  covenant  to  recover 
damages  for  a  breach  of  the  contract,  if  one  had  been  committed, 
in  non-performance  of  the  act  in  the  deed  mentioned,  —  judgment 
reversed. 

ANONYMOUS. 

In  the  Queen's  Bench.     1584. 
Reported  Anderson,  117. 

One  made  a  bill  to  another  in  these  words,  "  Memorandum.  I 
owe  A.  B.  £20  to  be  paid  in  watches ;"  on  which  it  was  demanded 
of  the  full  court  if  the  action  of  debt  ought  to  be  brought  on  the 
money  or  not,  or  if  he  shall  be  put  to  an  action  for  the  watches, 
and  all  the  court  said  that  an  action  ought  to  be  brought  for  the 
money  and  not  for  the  watches ;  for  the  number  of  watches  is  not 
certain.  And  this  case  is  not  parallel  with  the  case  39  Hen.  VI. 
fol.  36,  to  wit,  If  one  sells  to  another  twenty  cloths  for  £500,  on 
condition  that  he  shall  take  two  precious  stones  in  lieu  of  £200, 
and  certain  pearls  in  lieu  of  £100,  and  £200  in  money;  for  the 
action  lies  on  the  stones,  pearls,  and  money  which  are  certain,  and 
whereupon  an  action  might  be  based,  but  it  is  not  so  in  the  principal 
case.  And  note  that  it  is  said  that  if  one  sells  a  horse  for  £10,  on 
condition  that  the  vendee  pay  him  in  wheat  to  such  a  value,  or  if 
one  sells  a  chattel  for  [so  much]  grain,  an  action  lies  in  both  cases 
for  the  corn  and  not  for  the  money,  to  which  the  court  assent ;  but 
this  only  applies  when  the  quantity  of  the  wheat  is  shown,  other- 
wise, action  does  not  lie  to  demand  the  wheat,  for  [the  amount]  is 
uncertain. 

BRIKHED   V.   WILSON. 

Anno  1538. 

Reported  1  Dyer,  24  b. 

Debt  lies  for  some  kinds  of  chattels. 

See  Trin.  12  Hen.  VIII.  Eot.  542.  One  Brikhed  brought  an  action 
of  debt  against  Wilson  for  forty  quarters  of  malt,  and  declared  upon 
two  bills  obligatory,  by  which  the  defendant  "  acknowledged  him- 
self to  owe  to  the  said  plaintiff  twenty  quarters  of  good  and  proper 
malt,  to  be  delivered  on  such  a  day  in  London,  in  an  house,  etc., 
and  if  he  failed  at  the  day,  that  then  he  should  lose  and  forfeit 
forty  quarters;"  and  the  plaintiff  averred,  that  he  did  not  deliver 
the  twenty  quarters  at  the  day,  etc.,  by  reason  whereof  an  action 
accrued,  etc.     And  the  defendant  pleaded  a  tender  at  the  day  and 


ACTIONS    BEFORE    THE   STATUTE   OF   WESTMINSTER   II.  25 

place  aforesaid,  of  the  twenty  good  and  sufficient  quarters,  and  that 
the  plaintiff  then  and  there  refused  to  receive  them,  and  this,  etc. 
Upon  which  the  plaintiff  demurred,  and  adjudged  for  the  plaintiff, 
and  he  remitted  twenty  quarters,  etc.,  for  he  ought  to  have  said  that 
he  was  still  ready  to  deliver  the  twenty  quarters,  etc.^ 

Reported  Y.  B.  34  Edward  I.  151.     Anno  1306. 
Debt  may  lie  upon  contract  of  barter. 

A  writ  of  debt  was  brouglit,  and  demanded  ten  quarters  of  wheat 
which  he  bought  of  him,  to  be  paid  on  a  certain  day,  and  he  did  not, 
etc.  —  Lanfar.  You  did  not  buy  any  wheat  of  us,  ready,  etc.  —  Til- 
tone.  And  if  your  bailiff  has  received  our  money  in  your  name,  and 
for  your  profit,  ought  you  not  to  answer?  —  Lanfar.  We  acknowl- 
edge that  you  bought  of  us  so  much  wheat,  to  be  paid  on  a  certain 
day,  on  which  day  you  were  fully  paid,  and  on  the  same  day  you  re- 
ceived forty  shillings'  worth  of  timber  for  the  forty  shillings,  ready, 
etc.  —  Tiltone.  Since  you  have  admitted  the  debt,  and  do  not  show 
any  acquittance,  judgment,  etc.  —  Hengham.  Do  you  accept  the 
averment?  —  Tiltone.  As  before. —  Hengham.  Do  you  accept  the 
averment  ?  —  Tiltone.  Not  paid,  ready,  etc.  —  But  he  was  not  driven 
to  that  by  judgment;  nor  ought  he  to  be,  as  appears  by  a  similar 
plea  in  Michaelmas  Term,  in  the  twentieth  year  of  King  Edward. 

"  DUE." 

BECKWITH   V.    NOTT. 

Ix  THE  King's  Bench.     1618. 

Reported  Cro.  Jac.  504. 

In  case  of  a  recognizance  payable  at  two  days,  no  action  of  debt  should  be 
brought  until  the  whole  sum  is  due.     Cf.  decision  in  Rudder  v.  Price,  post. 

Error  of  a  judgment  in  an  action  on  the  case,  upon  an  assumpsit 
made  at  Southwark. 

The  first  error  assigned  was,  That  the  declaration  was  not  good  ; 
for  he  declares.  Whereas,  the  defendant  was  indebted  to  him  in 
four  pounds,  he  promised  at  Southwark,  upon  such  a  consideration, 
that  he  would  pay  it  him  by  five  shillings  the  month ;  and  allegeth, 
in  fact,  that  he  had  not  paid  the  said  four  pounds,  nor  any  parcel 

1  "  This  form  of  the  action  '  of  debt '  differs  from  detinue,  in  that  the  property  in  any 
specific  goods  need  not  be  vested  iu  tiie  plaintiff  at  the  time  the  action  is  bronght, 
which  is  essential  in  detinue.  But  this  form  of  action  is  probably  a  survival  of  the 
time  when  debt  in  the  debet  and  debt  in  the  detinet  were  the  same  action."  Perry  on 
PI.  55. 


26  CASES   ON   COMMON-LAW   PLEADING. 

thereof,  according  to  his  promise;   and  the  action  was  brought 

within  four  months  after  the  promise  made,  so  before  the  money 

was  due;  and  declares  to  his  damage  of  six  pounds.     Upon  non 

assiimpsit  pleaded,  it  was  found  for  the  plaintiff;  and  the  damages 

were  assessed  to  four  pounds,  and  judgment  given  accordingly.    And 

it  was  alleged  to  be  erroneous;  for  he  ought  to  have  stayed  the 

bringing  of  his  action  until  all  had  been  due,  or  to  have  demanded 

the  sum  which  was  due  for  the  four  months  only,  and  not  the 

entire  debt :  as  in  debt  upon  a  bill  or  recognizance  payable  at  two 

days,  he  may  not  bring  his  action  until  the  whole  sum  is  due  upon 

the  bill.     But  it  was  thereto  answered,. that  this  is  not  like  to  the 

case  of  a  bill  of  debt,  which  is  grounded  upon  the  specialty,  and 

cannot  be  demanded  until  the  entire  sum  be  due;  but  here  it  is 

grounded  upon  the  promise,  which  is  broken  by  every  non-payment 

according  to  the  promise  ;  and  he  doth  not  demand  any  sum  certain, 

but  only  damages ;  and  it  is  at  the  discretion  of  the  jury,  whether 

they  will  find  the  entire  sum  in  damages,  or  only  so  much  as  is  due. 

But  when  they  give  the  entire  damages,  as  here,  Doderidge,  J.,  said, 

that  it  is  with  an  averment  that  it  is  given  for  the  entire  sum  ;  and 

it  shall  be  a  good  bar  in  a  new  action  on  the  case  upon  that  promise. 

And  of  that  opinion  were  all  the  justices,  except  Houghton,  who 

doubted  thereof,  and  held  that  the  declaration  was  not  good,  because 

he  did  not  declare  in  certain,  that  the  promise  was  not  performed 

by  the  non-payment  at  such  days,  and  did  not  demand  damages  for 

it:  and  not  to    say   that  the  four  pounds  is  not   paid  nor   any 

parcel  thereof ;  for  the  four  pounds  is  not  yet  due.      Vide  4  Co.  94, 

Dyer,  112.     The  judgment  was  therefore  affirmed.  —  Xote  ex  hoc, 

that  where  a  man  brings  such  an  action  for  breach  of  an  assumpsit 

upon  the  first  day,  it  is  best  to  count  of  damages  for  the  entire 

debt,  for  he  cannot  have  a  new  action.^ 

"BY   CERTAIN   AXD   EXPRESS." 

YOUNG  AND   ASHBURNHAM'S   CASE. 

In  the  Common  Pleas.     1587. 

Reported  3  Leonard,  161. 

In  an  action  of  debt,  brought  by  the  administrators  of  Young 
against  Ashburnham,  the  defendant  pleaded  nihil  debet :  and  the 
en  quest  was  taken  by  default.  And  upon  the  e\ddence  given  for  the 
plaintiff,  the  case  appeared  to  be  this,  that  the  said  Young  was  an 
innholder  in  a  great  town  in  the  County  of  Sussex  where  the  ses- 
^  Auother  cause  of  error,  not  here  relevaut,  is  omitted. 


ACTIOXS    BEFORE   THE    STATUTE   OF   WESTMINSTER    II.  27 

sions  used  to  be  liolden  ;  and  that  the  defendant  was  a  gentleman  of 
quality  in  the  country  there ;  and  he,  in  going  to  the  sessions,  used 
to  lodge  in  the  house  of  the  said  Young,  and  there  took  his  lodging 
and  his  diet  for  himself,  his  servants  and  his  horses  :  upon  which,  the 
debt  in  demand  grew :  but  the  said  Young  was  not  at  any  price  in 
certain  with  the  defendant,  nor  was  there  ever  any  agreement  made 
betwixt  them  for  the  same.  It  was  said  by  Anderson,  Chief  Justice, 
that  upon  that  matter,  an  action  of  debt  did  not  lie.  And  there- 
fore afterwards,  the  jury  gave  a  verdict  for  the  defendant. 

THE    SIX    CARPENTERS'    CASE.^ 

In  the  King's  Bench,     1610. 

Reported  8  Coke,  147. 

"  Brown  held.  That  if  I  bring  cloth  to  a  tailor  to  have  a  gown 
made,  if  the  price  be  not  agreed  in  certain  before  how  much  I  shall 
pay  for  the  making,  he  shall  not  have  an  action  of  debt  against 
me ;  which  is  meant  of  a  general  action  of  debt ;  but  the  tailor 
in  such  a  case  shall  have  a  special  action  of  debt;  Sed,  that  A. 
did  put  cloth  to  him  to  make  a  gown  thereof  for  the  said  A.  and 
that  A.  would  pay  him  as  much  for  making,  and  all  necessaries 
thereto,  as  he  should  deserve,  and  that  for  making  thereof,  and  all 
necessaries  thereto,  he  deserves  so  much,  for  which  he  brings  his 
action  of  debt ;  in  that  case,  the  putting  of  his  cloth  to  the  tailor 
to  be  made  into  a  gown,  is  sufficient  evidence  to  prove  the  said 
special  contract,  for  the  law  implies  it:  And  if  the  tailor  over- 
values the  making,  or  the  necessaries  to  it,  the  jury  may  mitigate 
it,  and  the  plaintiff  shall  recover  so  much  as  they  shall  find,  and 
shall  be  barred  for  the  residue.  But  if  the  tailor  (as  they  use) 
makes  a  bill,  and  he  himself  values  the  making  and  the  neces- 
saries thereof,  he  shall  not  have  an  action  of  debt  for  his  own 
value,  and  declare  of  a  retainer  of  him  to  make  a  gown,  etc.,  for 
so  much,  unless  it  is  so  especially  agreed.  But  in  such  case  he 
may  detain  the  garment  till  he  is  paid,  as  the  hostler  may  the 
horse.  Vide  Br.  Distress,  70,  and  all  this  was  resolved  by  the 
court." 

"  In  an  action  of  debt  the  plaintiff  must  recover  the  whole  debt 
he  claims,  or  nothing  at  all.  I'or  the  debt  is  one  single  cause  of 
action,  fixed  and  determined,  and  which  therefore,  if  the  proof 
varies  from  the  claim,  cannot  be  looked  upon  as  the  same  contract 
whereof  performance  was  sued  for.     If  therefore  I  bring  an  action 

1  Ouly  an  extract  is  given. 


28  CASES    ON   COMMON-LAW   PLEADING. 

of  debt  for  £30,  I  am  not  at  liberty  to  prove  a  debt  of  £20,  and 
recover  a  verdict  thereon ;  any  more  than  if  I  bring  an  action  of 
detinue  for  a  horse,  I  can  thereby  recover  an  ox.  For  I  fail  in  the 
proof  of  that  contract  which  my  action  or  complaint  has  alleged  to 
be  specific,  express,  and  determinate."  Blackstone's  Commentaries, 
Book  III.  page  154. 

BLADWELL  v.  SLEGGEIN. 

In  the  Queen's  Bench.     1562. 
REPORtED  Dyer,  219,  b. 

In  debt  the  plaintiff  declared  upon  a  sale  of  certain  woods  for 
twenty  pounds,  and  the  defendant  pleaded  nil  debet  per  patriam. 
And  upon  evidence  it  appeared  that  the  bargain  was  only  twenty 
marks.  The  jury  (by  the  "opinion  of  Catlyn,  Chief  Justice,  and 
A.  Browne)  shall  be  bound  to  give  a  verdict  for  the  defendant  in 
this  case  as  well  as  when  the  variance  of  the  contract  is  of  things 
sold,  according  to  21  Edw.  IV.  [22  a,  pi.  2],  because  it  cannot  be  in- 
tended the  same  contract.  Qumre,  whether  there  be  not  some 
difference,  because  the  plea  is,  he  does  not  owe  the  sum  or  any 
part  thereof  in  form  as,  etc.,  whence  in  detinue  22  Edw.  IV.  [2  a, 
pi.  8]  of  a  chain  containing  three  ounces,  and  in  truth  it  contained 
only  two, the  defendant  may  safely  wage  his  law;  otherwise  is  it  if 
the  variance  be  only  in  the  price  or  value. 

GAMMON  V.  VERNON. 

In  the  King's  Bench.     1678. 

Reported  Sir  Thomas  Jones,  104. 

The  lessor  brought  debt  against  the  assignee  of  the  moiety  of 
the  term  for  the  moiety  of  the  rent  reserved  on  the  lease,  and  it 
was  resolved  by  the  whole  court,  that  the  action  well  lay. 

INGLEDEW  V.  CRIPPS.^ 

In  the  Queen's  Bench.     1702. 

Reported  Lord  Raymond,  814. 

Debt.  The  plaintiff  declared  upon  a  bill  penal,  sealed  and  deliv- 
ered by  the  plaintiff  to  the  defendant,  reciting,  that  whereas  the 
plaintiff  had  agreed  with  the  defendant  to  sell  him  so  many  stacks 
of  wood,  the  defendant  for  that  covenanted  to  pay  to  the  plaintiff 

1  So  mucli  of  the  case  as  does  not  illustrate  the  principle,  "  That  is  certain  which 
can  be  so  made,"  is  omitted. 


ACTIONS   BEFORE   THE   STATUTE   OF   WESTMINSTER   II.  29 

£35  for  every  hundred  of  the  said  stacks ;  and  bound  himself  in 
the  penalty  of  £100  to  do  it;  then  the  plaintiff  shows,  that  there 
was  so  many  stacks,  etc.,  and  brings  his  action  for  £310,  etc.,  as 
the  total  for  all  the  said  stacks.  The  defendant  demurred.  And 
it  was  objected  [among  other  things,  Ed.]  by  Mr.  Branthwaite 
for  the  defendant;  (2)  that  admitting  that  the  plaintiff  might  sue 
for  the  wood  sold,  yet  he  ought  to  have  covenant  and  not  an  action 
of  debt,  because  the  duty  was  not  certain,  for  the  agreement  is  to 
pay  so  much  for  every  hundred  stacks  that  should  be  in  such  a  place, 
and  it  [was,  Ed.]  altogether  uncertain  how  many  stacks  were  there. 
Sed  non  allocatur.  Eor,  per  curiam,  the  plaintiff  may  have  cov- 
enant or  debt  at  his  election.  For  the  rate  being  certain,  viz.,  £35 
for  every  hundred  stacks  of  wood ;  when  the  defendant  has  the 
wood,  the  agreement  becomes  certain,  for  which  debt  lies. 


JAMES   H.  KNOWLES    v.  INHABITANTS    OF   EASTHAM. 
Supreme  Judicial  Court,  Massachusetts.     1853. 
Reported  11  Cdshing,  429. 
Debt  does  not  lie  for  a  certain  sum  which  is  the  wrong  sum. 

This  was  an  action  of  debt  to  recover  the  sum  of  $32,  the  amount 
of  damages  alleged  to  have  been  awarded  the  plaintiff  by  the  select- 
men of  Eastham,  occasioned  by  laying  out  a  town-way  across  the 
plaintiff's  land.  At  the  trial  in  the  Court  of  Common  Pleas,  before 
Bishop,  J.,  the  plaintiff  produced  the  report  of  the  selectmen  of 
Eastham,  laying  out  said  way,  which,  so  far  as  [here]  material,  was  as 
follows :  "  In  locating  said  road,  we  have  agreed  with  the  owners  of 
the  land  for  the  following  sums  as  damages  by  them  sustained  in 
consetj[uence  of  said  road.     James  H.  Knowles,  $48  ;  $32." 

The  names  of  nine  other  land-owners  were  also  given,  each  being 
followed  by  a  double  colunm  of  tigures,  the  aggregate  amount  in  the 
second  column  being  $126.66,  or  two-thirds  of  the  aggregate  of  the 
sums  set  in  the  first  column. 

This  report  was  presented  at  a  town  meeting,  April  3,  1848,  and 
it  was  voted  not  to  accept  it.  The  county  commissioners  thereupon, 
upon  a  petition  of  several  persons,^  adjudged  that  "  the  common  con- 
venience and  necessity  of  a  part  of  the  inhabitants  of  Eastham 
required  that  the  report  of  said  selectmen  should  be  confirmed. 
They  therefore  approve  and  allow  said  road  as  laid  out  by  the 
selectmen,  as  and  for  a,  town  way,  and  direct  the  town  clerk  of 
Eastham  to  record  the  report  of  said  selectmen  of  the  same.     The 

1  The  petition  set  forth  that  the  town  refused  to  accept  the  road. 


30  CASES   ON    COMMON-LAW   PLEADING. 

selectmen  having  agreed  with  the  owners  of  the  land  over  which 
said  road  x^asses  for  damages,  the  sum  of  $126.66,  as  specified  in  the 
last  column  of  their  report,  which  sum  we  hereby  confirm,"  etc. 

The  defendants,  among  other  objections  not  material  to  be  re- 
ported, objected  that  there  had  not  been  such  a  legal  determination 
and  assessment  of  damages  sustained  by  the  plaintiff  as  to  support 
the  action,  but  the  presidmg  judge  ruled  otherwise,  and  a  verdict 
was  rendered  for' the  amount  claimed. 

H.  A.  Scudder,  for  the  defendants. 

G.  Marston  (N,  Marston,  with  him),  for  the  plaintiff. 

Dewey,  J.  Against  each  of  the  ten  names  of  the  land-owners 
is  stated  two  different  sums,  thus,  "  James  H.  Knowles,  $48  ;  $32." 
Taking  this  report  literally,  both  these  sums  are  awarded  to  the 
plaintiff.  But  that  is  not  supposed  by  either  party  to  have  been 
the  intention  of  the  selectmen.  If  not  both,  which  one  is  to  be 
taken  to  be  the  true  estimate  ?  It  is  then  proposed  by  the  plaintiff 
to  take  the  smaller  one.  But  that  he  cannot  do,  unless  the  smaller 
one  is  the  actual  estimate  of  damages  fixed  upon  by  the  selectmen. 
This  sliding  scale  of  damages  will  not  answer  for  practical  purposes. 
Suppose  the  party  should  apply  for  a  jury,  and  the  question  arises 
whether  the  jury  have  increased  tlie  damages  awarded  by  the  select- 
men, which  of  these  two  sums  is  to  be  taken  as  the  damages 
allowed  by  the  selectmen. 

It  seems  to  us  that  this  award  of  damages  is  too  uncertain  and 
indefinite  in  its  amount  to  be  the  basis  of  an  action  against  the 
town  to  recover  the  same  in  an  action  of  debt. 

New  trial  granted.^ 


AGEEEMENT.2 

ANONYMOUS. 

In  the  King's  Bench.     1712. 
Reported  1   Salkeld,  209. 

Fer  Curiam.  Debt  lies  in  the  Marshalsea,  or  any  other  courts, 
upon  judgments  in  C.  B.  or  B.  E.,  and  upon  nul  tiel  record  the 
issue  shall  be  tried  by  certiorari  and  mittimus  out  of  Chancery. 
The  judgment  being  the  gist  of  the  action,  qucere,  How  that  can 
be  alleged  to  be  within  the  jurisdiction  ?  which  is  necessary. 

1  Both  the  statements  of  facts  and  the  opinion  are  abridged. 

2  The  error  in  Blackstone's  definition  becomes  apparent  from  this  case  and  the 
following  oases.  They  are  not  cases  ot  "  agreement,"  but  debt  lies.  Hence  Black- 
stones  definition  is  too  narrow.  — Ed. 


ACTIONS    BEFORE   THE   STATUTE   OF    WESTMINSTER   II.  31 

BIGELOW  V.  THE  CAMBRIDGE  AND   CONCORD  TURNPIKE 

CORPORATION. 

Supreme  Judicial  Court,  Massachusetts.     1810. 

Reported  7  Massachusetts,  201. 

By  the  Coiirt.^  "  Whenever  a  statute  gives  a  right  to  recover 
damages,  reduced,  pursuant  to  the  provisions  of  such  statute,  to  a 
sum  certain,  an  action  of  debt  lies,  if  no  other  specific  remedy  is 
provided. 

"  Let  judgment  be  entered  for  the  plaintiff  for  the  amount  agreed 
by  the  parties." 

UNDERHILL  AND  ANOTHER  v.  ELLICOMBE,  CLERK. 

Exchequer  of  Pleas,  Trinity  Term.     1825. 

Reported  1  M'Cleland  and  Younge's  Reports,  450. 

Where  a  statute  points  out  a  remedy  for  the  recovery  of  money  no  other 
remedy  exists. 

This  was  an  action  of  debt  brought  by  the  plaintiffs,  surveyors 
of  the  highways,  in  the  parish  of  Alphington,  Devon,  against  the 
defendant,  who  is  rector  of  the  same,  to  recover  <£29  2s.  10|c?., 
being  the  amount  of  composition-money  assessed  upon  him  in  lieu 
of  statute  duty,  which  he  was  charged  to  be  liable  to,  in  respect  of 
the  great  and  small  tithes  of  the  parish.  At  the  trial  at  the 
Devonshire  Summer  Assizes  for  1824,  before  Abbott,  L.  C.  J.,  a 
verdict  was  taken  for  the  plaintiffs,  subject  to  the  opinion  of  the 
court,  on  the  following  case. 

The  plaintiffs  were  lawfully  appointed  surveyors  of  the  high- 
ways of  the  said  parish,  under  the  13  Geo.  III.  c.  78,  and  the  assess- 
ment, which  is  as  follows  :  — 

"Tithes,  great  and  small  —  annual  value  £649 — assessment 
£29  2.S.  lO^d."  was  duly  made  in  form  and  amount.  The  defend- 
ant receives  no  tithes  in  kind,  but  is  under  a  parol  composition 
with  all  the  tithe  payers  in  the  parish,  for  the  whole  of  their  tithes 
(great  and  small),  from  year  to  year.  The  composition  is  made 
with  the  farmers  of  the  respective  lands  in  which  the  tithes  arise, 
is  determinable  only  at  six  months'  notice,  and  is  made  prospec- 
tively, without  reference  to  the  respective  modes  of  cultivation  on 
the  particular  estates  in  any  particular  year.  The  money  assessed 
had  been  duly  demanded ;  and  the  defendant  had  refused  to  pay  it. 
Application  had  been  made  to  the  magistrates  of  the  division  for  a 
1  The  reporter's  statement  of  facts  and  the  arguments  of  counsel  are  omitted. 


32  CASES    ON    COMMON-LAW   PLEADING. 

warrant  of  distress,  which  they  had  refused,  entertaining  doubts  of 
the  defendant's  liability. 

The  questions  for  the  opinion  of  the  court  were;  —  1st,  whether 
the  plaintiffs,  as  surveyors  of  the  highways,  had  any  right  of  action  ? 
and  2d,  whether,  under  the  circumstances  stated,  the  defendant  is 
an  occupier  of  tithes  within  the  meaning  of  the  several  highway 
acts  ? 

April  30.  The  case  came  on  now  for  argument ;  but  before  it 
was  commenced,  Hullock,  B.,  asked  whether  there  was  any  objec- 
tion to  turning  it  into  a  special  verdict,  in  order  to  afford  an  oppor- 
tunity of  bringing  a  writ  of  error  from  tlie  decision  of  the  court,  if 
it  should  be  thought  expedient.  To  this  Manning,  on  the  part  of 
the  plaintiffs,  assented,  but  Coleridge  said  he  did  not  feel  himself 
at  liberty,  on  the  part  of  the  defendant,  to  accede  to  it,  and  the 
argument  proceeded. 

Manning,  for  the  plaintiffs,  said,  that  the  question  came  before 
the  court  on  the  construction  of  the  statutes  13  Geo.  III.  c.  78,  34 
Geo.  III.  c.  74,  and  54  Geo.  III.  c.  109,  ss.  4  and  5.  On  the  second 
point,  he  cited  The  King  v.  The  Justices  of  Buckinghamshire,  1  B. 

6  C.  485,  E.  C.  L.  R  vol.  1,  2  D.  &  R  689,  E.  C.  L.  R  vol.  16; 
Rex  V.  Lambeth,  1  Str.  525,  8  Mod.  61 ;  Regina  v.  Bartlett,  6  Vin. 
Abr.  tit.  "  Poor,"  427  (and  Hullock,  B.,  referred  to  Rex  v.  Turner,  1 
Str.  77,  Id.  100,  and  Rex  v.  Skingle^).  On  the  first,  he  argued 
that  the  plaintiffs  had  a  right  of  action,  relying  on  the  three 
placita  stated,  in  1  Roll.  Abr.  598;  "Dett."  K.  pi.  18,  19,  20,  and 

7  Vin.  Abr.  346,  (K.  2),  "  Debt,"  1,  2,  3.  The  first  of  these  was 
thus,  "where  by  the  statute  of  14  Hen.  VIII.  c.  5, and  the  letters 
patent  of  the  king,  it  is  enacted,  that  every  one  that  practises 
physic  in  London,  without  license  of  the  College  of  Physicians, 
shall  forfeit  for  every  month  £5,  one  moiety  to  the  king,  and 
the  other  to  the  college;  though  no  action  is  appointed  for  it, 
yet  they  have  an  action  of  debt  for  it,  Trin.  4  Jac.  B.  R"  [Hul- 
lock, B.  —  How  would  you  get  at  that  penalty,  unless  by  action 
of  debt  ?]  In  this  instance,  as  the  magistrates  refuse  to  grant 
a  warrant  of  distress,  and  the  Court  of  B.  R.  will  not  compel 
them  to  do  so  by  mandamus,  there  is  no  other  method  of  recover- 
in<''  the  composition-money  than  by  action.  Secondly,  "  an  action 
of  debt  lies  upon  the  statute  2  and  3  Edw.  VI.  for  the  treble  value, 
for  not  setting  forth  tithes,  though  the  statute  does  not  mention 
any  action,  but  only  that  he  shall  forfeit  the  treble  value,  and  does 
not  mention  to  whom  he  shall  forfeit  it,  nor  by  what  action  it  shall 

1  It  was  thought  unnecessary  to  go  further  into  the  argument  on  this  point,  as  the 
court  decided  ou  the  other,  exclusively. 


ACTIONS   BEFORE    THE   STATUTE    OF   WESTMINSTER   II.  33 

be  recovered,  Co.  "Entries."  In  this  case  the  statute  directs  that 
suits  concerning  tithes  shall  be  brought  in  the  Ecclesiastical  Court, 
yet  the  common  law  superadds  an  action  of  debt.  Thirdly,  "an 
action  of  debt  lies  by  a  sheriff  upon  the  statute  of  28  Eliz.  c.  4,  for 
his  fees,  given  by  the  statute  for  an  execution  served  by  him, 
though  the  statute  does  not  say  that  he  shall  have  his  fees,  or  any 
action  for  them,  but  only  says  that  he  shall  not  take  for  any  execu- 
tion served,  any  consideration  or  recompense,  besides  that  there- 
after in  the  said  act  mentioned,  which  it  shall  be  lawful  to  be  had 
and  received,  scil.  12d.  for  20s.  where  the  sura  does  not  exceed 
£100  and  6d.  where  above  £100."  (Proby  &  Lumley  v.  Mitchell,  14 
Jac.  B.  E.)  In  another  report  of  this  case,  Moore,  853,  it  is  said, 
that  "  because  there  is  a  duty,  an  action  is  given  of  necessity  by 
the  law ; "  now  the  necessity  for  the  remedy,  by  debt,  exists  in  the 
present  case.  [Hullock,  B.  —  In  all  the  cases  you  have  men- 
tioned, the  sums  of  money  to  be  recovered,  or  a  moiety  of  them, 
are  given  to  individuals  in  respect  of  what  is  conceived  to  be  a 
private  injury  or  right.  Do  you  know  any  instance  of  a  poor's  rate 
being  recovered  by  action  of  debt,  —  any  case  where  a  distress,  or 
other  specific  remedy,  distinct  from  an  action  of  debt,  is  prescribed 
by  a  statute,  and  the  party  may  have  recourse  to  that  action  ?]  If 
the  distress  were  not  given,  the  right  of  action  would  necessarily 
follow.  As  it  cannot  be  rendered  available,  the  consequence  ought 
to  be  the  same.  If  the  particular  remedy  prescribed  by  a  statute 
be  a  competent  one,  then  the  party  is  precluded  from  any  other ; 
but  where  it  is  ineffectual,  the  action  of  debt  should  be  allowed. 
The  statute  directs  the  payment  of  the  rate.  The  assessment  has 
been  duly  made  ;  and  as  it  is  not  recoverable  otherwise,  debt  lies 
by  construction  of  law.  In  The  King  v.  The  Justices  of  Bucking- 
hamshire, Abbott,  C.  J.,  contemplated  the  possibility  of  the  ques- 
tion coming  before  the  Court  of  B.  R.  in  another  way.  The  only 
other  way  in  which  it  could  be  brought  before  it  is  by  action  of 
debt.  [Alexander,  C.  B.  —  Do  you  mean  to  say,  that  by  this  act 
of  parliament  the  legislature  have  given  to  surveyors  of  highways 
an  action  in  every  instance,  at  their  option,  or  only  where  the 
magistrates  refuse  a  warrant  of  distress  ?]  It  would  seem  in  every 
case.  [Alexander,  C.  B.  —  That  is  contrary  to  the  decisions  on  the 
poor  laws.  All  that  can  be  said  is,  that  the  legislature  have  given 
a  remedy  which  is  not  universally  effectual.] 

Coleridge,  contra. 

Manning,  in  reply. 

June  11.     The  Lord  Chief  Baron  now  delivered  the  judgment  of 
the  court,  as  follows  :  — 

3 


34  CASES   ON   COMMON-LAW   PLEADING. 

This  is  an  action  of  debt  by  surveyors  of  highways,  to  recover 
the  amount  of  composition-money  duly  assessed  upon  the  defend- 
ant in  lieu  of  statute  duty.  The  plaintiffs  had  a  verdict,  subject 
to  the  opinion  of  the  court  upon  a  special  case.  In  the  discussion 
of  the  case,  two  questions  have  been  debated.  [His  Lordship 
stated  them.]  We  do  not  mean  to  give  any  opinion  on  the  second 
of  these,  as  the  opinion  we  have  formed  on  the  first  will  entirely 
dispose  of  the  case.  We  think  that  the  plaintiffs  cannot  maintain 
the  action.  This  is  a  claim  given  by  statute,  and  the  same  statute 
which  creates  it  prescribes  a  particular  remedy  for  its  enforcement. 
Therefore,  it  appears  to  us  that  no  other  can  be  resorted  to.  The 
13  Geo.  III.  c.  78,  s.  34,  which  imposes  the  charge,  and  ascertains 
its  amount,  provides,  "  that  in  default  of  payment,  the  money  shall 
be  levied  by  distress  and  sale  of  the  goods  and  chattels  of  the  per- 
son or  persons  refusing  to  pay  the  same,  in  such  manner  as  the 
forfeitures  for  neglect  to  perform  the  statute  duty  are  thereby 
authorized  to  be  levied  and  raised ; "  and  the  72d  section  directs 
the  penalties  and  forfeitures  to  be  levied  by  distress  and  sale,  by 
warrant  under  the  hand  and  seal  of  a  justice  of  the  peace.  The 
34  Geo.  III.  c.  74,  in  repeating  the  same  provisions  for  the  pay- 
ment of  a  composition,  points  out  a  remedy  for  raising  it,  to  exactly 
the  same  effect.  These  are  the  statutes  which  establish  the  right, 
to  enforce  which  the  present  action  has  been  brought.  In  creating 
the  right,  they  also  direct  the  remedy ;  and  we  have  found  no 
authority  that  any  other  can  be  pursued.  No  case  in  point  has 
been  stated  in  support  of  the  action,  and  it  appears  to  be  a  rather 
new  experiment.  In  the  case  of  Stevens  v.  Evans,  2  Burr.  1157, 
Mr.  J.  Dennison  says,  that  "  upon  a  new  statute  which  prescribes 
a  particular  remedy,  no  remedy  can  be  taken,  but  that  particular 
remedy  prescribed  by  the  statute ;  therefore  clearly  no  action  of 
debt  will  lie  for  a  poor's  rate."  This  is  an  opinion  against  the 
present  action.  Independently  of  this,  there  are  provisions  in  the 
same  statutes,  from  which  it  is  to  be  inferred,  that  no  other  remedy 
was  in  the  contemplation  of  the  legislature  than  that  which  is 
specifically  mentioned;  because  these  statutes  expressly  provide 
for  an  action  of  debt  in  those  cases  where  that  mode  of  proceeding 
was  intended  to  be  granted ;  but  these  provisions  do  not  touch  this 
case.  The  13  Geo.  III.  c.  78,  s.  67,  authorizes  the  justice  in  default 
of  distress  to  commit  the  party  to  jail.  The  34  Geo.  III.  c.  74, 
contains  a  similar  clause  (s.  4),  with  this  further  provision,  —  that 
if  it  shall  appear  to  the  justices  to  whom  application  may  be 
made  upon  the  subject,  that  the  party  liable  to  the  composition- 
money  is  then  in  indigent  circumstances,  and  as  such  deserving  of 


ACTIONS   BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  35 

relief;  they  are  authorized,  at  their  discretion,  to  discharge  such 
party  from  the  payment  of  it.  Now  if  surveyors  of  highways 
possess  this  right  of  action,  not  only  might  it  be  made  an  instru- 
ment of  great  oppression  and  vexation,  but  it  would  probaljly  de- 
prive the  magistrates  of  that  power  of  remitting,  or  mitigating  the 
charge,  conferred  on  them  by  the  clause  just  mentioned.  The 
cases  which  were  stated  in  support  of  this  action  do  not  maintain 
the  proposition  for  which  they  were  adduced.  Generally  they  go 
to  show,  that  if  a  statute  prohibits  the  doing  of  a  thing  under  a 
penalty,  to  be  paid  to  the  party  grieved,  or  without  saying  to  whom 
it  shall  be  paid,  and  does  not  prescribe  any  mode  of  recovery,  this 
action  may,  in  such  case,  be  maintained  by  the  party  grieved,  and 
for  that  there  are  many  other  authorities.  Com.  Dig.  tit.  "Action 
upon  Statute,"  (F),  Presid.,  etc.,  of  Physicians  v.  Salmon,  1  Ld. 
Eaym.  682.  Again,  we  find  it  distinctly  laid  down,  that  debt  lies 
upon  every  contract  in  deed  or  in  law.  Com.  Dig.  tit.  "  Debt,"  (A), 
1.  The  cases  stated  went  to  prove  one  or  other  of  these  proposi- 
tions, but  we  think  they  do  not  apply  here.  In  the  case  before 
the  court,  the  parties  suing  are  not  the  parties  grieved  ;  —  a  remedy 
by  distress  is  expressly  given  by  the  statute ;  and  no  contract 
exists.  Therefore  we  are  of  opinion,  that  the  action  does  not  lie, 
and  that  the  verdict  should  be  set  aside,  and  a  nonsuit  entered. 

Postect  to  the  defendant.^ 


HOOPER   V.    SHEPHARD. 

In  the  King's  Bench.     1738. 

Reported  2  Strange,  1089. 

Error  of  a  judgment  in  C.  B.  in  debt  upon  a  charter-party, 
whereby  the  defendant  was  to  pay  fifty  guineas  per  month.  And 
the  plaintiff  states,  that  £652  10s.  was  due  for  the  whole,  £152  10s. 
whereof  he  had  received,  and  the  remainder  was  £500  for  which 
the  action  was  brought.  The  defendant  pleaded,  that  he  had  paid 
at  the  rate  of  fifty  guineas  per  month  for  all  the  time  the  ship  was 
in  his  service;  and  issue  being  taken  that  he  did  not;  the  jury 
find  that  £357  lis.  remained  unpaid,  but  say  nothing  as  to  the 
rest  of  the  £500. 

It  was   first  2  objected,   that  covenant,  and  not  debt,  was  the 

^  The  arguments  of  Coleridge,  for  the  defence,  and  of  Manning,  in  reply,  are 
omitted. 

-  It  was  then  successfully  objected  that  this  was  an  imperfect  verdict,  the  jury 
not  having  answered  to  all  they  were  charged  with. — Ed. 


36  CASES    ON   COMMON-LAW   PLEADING. 

proper  action :  but  this  was  got  over,  it  being  founded  upon  a  deed, 
in  which  case  debt  will  lie,  according  to  1  Roll.  Abr.  591 ;  Cro. 
Eliz.  561,  758 ;  1  Roll.  Abr.  597 ;  Sti.  31 ;  3  Lev.  429. 


HICKMAN   V.   SEARCY'S   EXECUTORS. 

Supreme  Court  of  Ten:nessee.     1836. 
Reported  17  Tennessee,  47. 
Debt  lies  upon  an  implied  contract,  where  the  sum  is  certain. 

This  was  an  action  of  debt,  by  the  defendants  in  error,  against 
the  plaintiff  in  error,  in  which  the  following  facts  were  agreed  : 
Thomas  Hickman  and  Robert  Searcy,  in  his  lifetime,  sold  609 
acres  of  land  to  William  Outlaw  for  $1800,  and  made  a  deed  with  a 
joint  warranty  of  title,  under  date  of  26th  of  February,  1805.  Robert 
J.  Nelson  recovered  this  land  of  Outlaw  in  the  month  of  February, 
1819,  by  ejectment,  and  turned  him  out  of  possession.  Robert 
Searcy  died  in  1820,  having  appoii\ted  Stephen  Cantrell  and  Jesse 
Blackfan  executors,  who  both  proved  the  will  and  qualified  in  Oc- 
tober of  that  year. 

Outlaw's  heirs  sued  the  executors  of  Searcy  and  Thomas  Hickman 
upon  the  covenant  of  warranty,  and  in  ]\Iay,  1827,  recovered 
^2101.50  damages.  Upon  this  suit  the  executors  pleaded,  fully 
administered,  and  an  outstanding  bond  to  the  United  States,  etc., 
which  pleas  were  found  in  favor  of  the  executors,  and  judgment 
rendered  against  them  quando  decider  int. 

Upon  this  judgment  the  heirs  of  Outlaw  sued  out  a  scire  facias 
against  the  heirs  of  Robert  Searcy,  and  on  the  28th  day  of  Novem- 
ber, 1828,  recovered  judgment  against  them  for  $2178,  and  recovered 
also  $19.32,  the  costs  of  the  suit  against  the  executors.  This  judg- 
ment against  the  heirs  of  Robert  Searcy,  and  the  judgment  against 
Searcy's  executors  and  Hickman,  were  transferred  to  John  C. 
McLemore,  and  on  the  first  of  April,  1829,  Stephen  Cantrell,  as 
executor  of  Robert  Searcy,  paid  to  McLemore  $2225.19,  being  the 
amount  of  the  judgments,  with  interest  up  to  that  time.  Said  pay- 
ment to  McLemore  was  made  out  of  the  personal  assets  belonging  to 
said  Searcy's  estate,  in  the  hands  of  said  Cantrell,  executor,  etc. 

R.  J.  Meigs,  for  plaintiff  in  error. 

The  questions  submitted  to  the  court  are : 

1.  Whether  on  these  facts  debt  will  lie  by  Searcy's  executors 
against  Hickman.  In  other  words,  will  debt  lie  for  contribution  by 
one  warrantor  in  a  deed  against  his  co-warrantors  ?  We  say  not ; 
and  the  true  test  whether  debt  will  lie  or  not,  is  whether  blie  sum 


ACTIONS    BEFORE    THE   STATUTE    OF   WESTMINSTER   II.  37 

to  be  recovered  has,  upon  the  contract  itself,  a  legal  certainty. 
Hence  it  will  not  lie  on  any  collateral  undertaking,  where  the  sum 
to  be  recovered  is  uncertain,  and  sounds  merely  in  damages.  1 
Mason,  296.1 

Charles  Scott,  for  the  defendants  in  error.^ 

Turley,  J.,  delivered  the  opinion  of  the  court. 

*'  The  only  question  made  by  the  plaintiff'  in  error  upon  the  case 
agreed  is  whether  the  action  of  debt  is  well  brought.  It  has  long 
been  settled  that  the  action  of  debt  and  indebitatus  assumpsit  are 
concurrent  remedies  upon  all  simple  contracts  where  the  sum  to  be 
recovered  is  made  certain,  either  by  the  contract  of  the  parties  or 
by  operation  of  law ;  indeed,  the  action  of  indebitatus  assumpsit  only 
became  the  common  remedy  upon  such  contracts  in  order  to  avoid 
the  wager  of  law  allowed  upon  actions  of  debt,  as  the  action  of  debt 
is  now  about  to  supersede  the  action  of  indebitatus  assumpsit  to 
avoid  the  operation  of  the  statute  of  limitations  of  three  years.  Is 
the  sum  sought  to  be  recovered  in  this  case  specific  and  certain  ? 
Unquestionably  it  is  so  by  the  operation  of  law.  A  joint  judgment 
had  been  obtained  against  the  plaintifi'  and  defendants  in  error, 
which  was  paid  by  the  defendants.  What  does  the  law  say  upon 
this  ?  That,  as  to  one-half  the  amount,  it  is  money  laid  out  and 
expended  for  the  use  of  the  plaintiff  by  the  defendant,  and  implies 
a  promise  to  pay  it ;  no  other  action  than  debt,  or  indebitatus  as- 
sumpsit, could  have  been  brought,  for  the  contract  is  not  express, 
but  implied.     Let  the  judgment  be  aftirmed." 

Judgment  affirmed. 

COLLINS   V.   JOHNSON. 

Superior  Court,  D.  Arkansas,     1835. 

Reported  Federal  Cases,  3015  a. 

Debt  may  lie  on  an  implied  contract,  no  particular  sum  being  expressed. 

Yell,  J.,  delivered  the  opinion  of  the  court.  "  This  was  an  action 
of  debt,  brought  to  recover  the  value  of  4007  pounds  of  seed  cotton, 
delivered  by  Johnson  to  Collins  to  be  ginned.  A  demand  was  made 
for  the  cotton,  and  a  refusal  by  Collins,  and  upon  that  refusal 
Johnson,  the  plaintiff  in  the  court  below,  commenced  this  suit  before 
Isaac  Ward,  a  justice  of  the  peace,  in  an  action  of  debt  on  account. 
There  was  a  judgment  before  the  justice  of  the  peace  in  favor  of  tlie 
defendant,  Collins,  from  whicli  judgment  Johnson  prayed  an  appeal 

1  A  part  of  Mr.  Meigs's  argument  is  omitted. 

2  Mr.  Scott's  argument  is  omitted. 


38  CASES    ON   COMMON-LAW   PLEADING. 

to  the  Clark  Circuit  Court ;  and  at  the  October  term  of  that  court, 
1833,  Johnson  recovered  a  judgment  against  Collins  for  the  sum  of 
$52.59  and  costs,  to  which  judgment  this  writ  of  error  is  prosecuted. 

"  The  plaintiff  in  error  set  up  various  grounds  [the  first  only  of 
which  is  here  material]  to  reverse  the  judgment  of  the  court  below. 
1.  Because  an  action  of  debt  will  not  lie  to  recover  the  price  of  cot- 
ton delivered  at  a  gin,  and  a  refusal  to  pay  or  redeliver,  unless  the 
cotton  had  been  converted  to  cash,  when  the  tort  might  be  waived, 
and  assumpsit  sustained  for  money  had  and  received  to  plaintiff's 
use.  .  .  . 

"  The  first  objection  taken  by  the  counsel  for  the  plaintiff  in  error 
presents  a  comparatively  new  question  in  this  court  for  determina- 
tion. But  one  adjudication  in  this  court  is  to  be  found  to  aid  us  in 
coming  to  a  direct  decision.  A  similar  point  has  been  settled  in 
this  term,  in  the  case  of  James  v.  Buzzard  (Case  No.  7206  &).  By 
reference  to  the  English  authorities  —  1  Saund.  133;  1  Chitty,  94; 
1  Torrenton,  112  —  it  will  be  found  that  assumpsit  would  lie.  The 
plaintiff,  Johnson,  might  have  his  election  to  waive  the  tort  and  sue 
in  assumpsit,  and  a  judgment  in  assumpsit  would  be  a  bar  to  any 
other  action,  and  vice  versa  if  he  elected  to  bring  a  tort  or  trover. 
That  the  action  of  assumpsit  would  have  been  good,  this  court  does 
not  feel  any  doubt.  Debt  may  be  due  by  contract,  either  express 
or  implied,  but  it  is  not  essential  that  the  contract  should  be  specific, 
or  that  any  particular  amount  be  expressed.  It  iuay  arise  on  an 
implied  contract.  The  action  of  debt  will  lie  where  the  sum  to  be 
recovered  can  be  ascertained  ;  as  upon  an  account  stated,  or  for  goods 
sold  to  the  defendant  for  as  much  as  they  are  worth,  Doug.  6.  This 
doctrine  is  sanctioned  by  Washington,  [?]  J.,  in  Hughes  v.  Union 
Ins.  Co.  of  Baltimore,  8  Wheat.  311 ;  namely,  that  when  indebitatus 
assumpsit  is  maintainable,  debt  is  also.  3  Com.  Dig.  365.  The  prin- 
ciples settled  by  such  high  authority  this  court  is  unwilling  to 
disturb."  Judgment  affirmed.^ 


HUGHES  V.  THE  UNION  INSURANCE  CO.  OF  BALTIMORE. 

Supreme  Court  of  the  United  States.     1823. 

Reported  8  Wheatox,  294. 

Debt  lies  to  recover  a  less  sum  than  that  sued  for.     Cf.  U.  S.  v.  Colt,  1  Pet. 
Jr.  145. 

This  was  an  action  of  debt,  upon  a  policy  of  insurance.     [The  ac- 
tion was  for  two  distinct  sums,  S18,000  on  the  ship,  and  S2000  on 

1  Matter  not  relevant  to  the  ground  of  error  here  alleged  is  omitted. 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER   II.  39 

the  freight.  The  judge  instructed  the  jury,  after  giving  other  direc- 
tions prayed  for],  "that  this  was  a  valued  policy,  on  which  an 
action  of  debt  lies ;  the  sum  claimed  being  specified  by  an  agree- 
ment of  the  parties.  But  the  whole  must  be  recovered,  or  no  part 
of  it  can  be  recovered.  In  this  suit  the  action  is  for  two  distinct 
sums,  S18,000  on  the  ship,  and  S2000  on  the  freight.  The  party 
can  recover  either  entire,  and  not  the  other ;  but  not  a  portion  of 
either,  without  accounting  for  the  residue." 

Mr.  Justice  Johnson  delivered  the  opinion  of  the  court. 

"  With  regard  to  that  part  of  the  instruction  which  was  given 
voluntarily  by  the  court,  it  is  necessary  to  remark,  that  although  it 
does  not  appear  to  have  been  moved  by  the  defendant's  counsel,  yet 
it  was  on  a  point  certainly  presented  by  the  case ;  and  as  it  is  one 
on  which  this  cause  may,  by  possibility,  be  again  brought  up  to  this 
court,  it  is  proper  now  to  decide  it. 

"  So  far  as  it  relates  to  the  policy  on  the  ship,  there  can  be  no  diffi- 
culty. The  plaintiff  is  entitled  to  the  whole,  or  nothing.  We  are 
of  opinion  that  he  was  entitled  to  the  whole.  But  as  the  plaintiff 
demands  only  the  sum  of  $420  for  freight  from  the  '  Havanna,'  the 
question  arises  whether,  in  this  form  of  action,  he  could  recover  less 
than  the  $2000  specified  in  the  contract,  and  claimed  by  the  writ. 
[Here  the  court  repeated  the  charge  to  the  jury  above  quoted.] 

"  On  this  subject,  the  court  is  satisfied  that  the  law  of  the  action  of 
debt  is  the  same  now  that  it  has  been  for  centuries  past.  That  the 
judgment  must  be  responsive  to  the  writ,  and  must,  therefore,  either 
be  given  for  the  whole  sum  demanded,  or  exhibit  the  cause  why  it 
is  given  for  a  less  sum.  Otherwise  non  constat^  but  the  difference 
still  remains  due.  That  this  is  the  law  where  an  entire  sum  is  de- 
manded in  the  writ,  and  shown  by  the  counts  to  consist  of  several 
distinct  debts,  is  established  by  the  case  of  Andrews  v.  De  la  Hay, 
Hobart,  178  ;  that  the  law  is  the  same  where  an  entire  sum  is 
demanded,  and  only  half  of  it  established,  is  laid  down  expressly 
in  the  case  of  Speak  v.  Richards,  Hobart,  209,  210,  and  adjudged  in 
tlie  case  of  Grobbam  v.  Thornborough,  Hobart,  82,  and  in  the  more 
modern  case  of  Ingledew  v.  Creps,  reported  2  Lord  Raym.  814, 
816.  Our  own  courts,  in  several  of  the  States  and  districts,  have 
also  recognized  and  conformed  to  the  same  doctrine. 

"  And  the  same  cases  establish  that  the  requisite  conformity  be- 
tween the  writ  and  judgment,  in  the  action  of  debt,  may  be  fully 
complied  with,  either  by  the  pleadings,  the  finding  of  the  jury,  or 
a  remitter  entered  by  the  plaintiff,  either  before  or  after  verdict, 
or  even  after  demurrer. 

"  If,  therefore,  the  instruction  to  the  jury  on  this  point  was  in- 


40  CASES   ON    COMMON-LAW   PLEADING. 

tended  to  intimate  that  they  could  not  find  for  the  plaintiff  any  less 
sura  than  the  $2000  valued  on  the  freight,  we  deem  it  exceptionable, 
inasmuch  as  the  plaintiff  had  a  right  to  claim  a  verdict  for  the 
freight  established  by  the  evidence,  and  enter  a  remitter  for  the 
difference."    Judgment  reversed,  and  a  venire  de  yiovo  awarded.  ^ 


UNION   IRON   CO.  V.  PIERCE  et  al. 
Circuit  Court,  D.  of  Indiana.     1869. 
Reported  Federal  Cases,  No.  14,367. 
Debt  lies  on  penal  statutes. 

McDonald,  District  Judge.  "  This  is  an  action  of  debt  [upon  a 
penal  statute].  A  general  demurrer  is  filed  to  the  declaration,  and 
whether  the  demurrer  ought  to  be  sustained,  is  the  question  to  be 
decided.  .  .  . 

"In  support  of  the  demurrer,  it  is  contended  that  the  action  of 
debt  will  not  lie  on  the  provisions  of  the  statute  above  cited,  under 
any  circumstances ;  and  that  as  the  action  has  been  misconceived 
the  demurrer  must  be  sustained.  In  support  of  this  view  it  is  said 
that  this  is  a  penal  statute,  and  the  action  it  gives  is  consequently 
an  action  in  form  ex  delicto.  We  do  not  understand  that  this  con- 
sequence follows.  We  shall  hereafter  have  occasion  to  inquire 
whether  this  is,  in  the  technical  sense,  a  penal  statute.  We  think, 
however,  whether  it  is  such  or  not  cannot  settle  the  form  of  action 
to  be  adopted.  For  though  it  be  regarded  as  a  penal  statute,  this 
circumstance  does  not  tend  to  prove  that  debt  will  not  lie  on  the 
claim  stated  in  the  declaration.  The  action  of  debt  lies  in  many 
cases  on  penal  statutes.  At  common  law,  debt  is  a  very  extensive 
remedy.  It  lies  on  simple  contracts,  and  on  specialties  for  the  pay- 
ment of  money.  It  lies  on  judgments  for  money,  and  on  legal 
liabilities ;  and  it  lies  for  penalties  and  other  liabilities  created  by 
statute,  requiring  the  payment  of  money,  when  the  statute  declares 
no  other  remedy,  and  where  the  amount  of  the  liability  is  certain,  or 
may  be  readily  rendered  certain.  1  Chitty  on  PI.  110-112.  And 
we  may  lay  it  down  as  a  general  rule,  that  whenever  the  obligation 
is  to  pay  a  sum  of  money  which,  as  to  amount,  is  certain  or  may  be 
readily  rendered  certain,  whether  the  liability  arises  on  simple  con- 
tract, legal  liability,  specialty,  record,  or  statute,  the  action  of  debt 
is  a  proper  form  of  remedy."  ^ 

Demurrer  sustained  [on  other  grounds]. 

1  Only  so  much  of  the  case  as  relates  to  the  matter  here  discussed  is  presented. 

2  Only  so  much  of  the  case  as  relates  to  the  action  of  debt  is  reported. 


ACTIONS   BEFORE   THE   STATUTE   OF   WESTMINSTER   II.  41 

SIMONTON  V.  BARRELL. 

Supreme  Court  of  New  York.    1839. 
Reported  21  Wendell,  362. 
Though  a  statute  gives  a  remedy  by  scire  facias,  debt  may  also  lie. 

Error  from  the  superior  covirt  of  the  city  of  New  York.  Barrell 
sued  Simonton  and  declared  in  debt  on  a  judgment  rendered  in  his 
favor,  against  the  defendant,  in  a  circuit  court  of  the  District  of 
Columbia,  held  for  the  County  of  Washington.  The  defendant 
pleaded  nul  ticl  record,  nil  debet,  and  payment.  Issues  being  joined, 
the  cause  was  brought  to  trial,  when  the  plaintiff  produced  an  ex- 
emplification of  the  record,  and  rested.  The  defendant  produced 
another  copy  of  the  same  record,  with  entries  upon  it,  subsequent 
to  the  judgment,  by  which  it  appeared  that  the  defendant  had  been 
arrested  on  a  capias  ad  satisfaciendum,  issued  upon  the  judgment 
and  discharged  from  such  arrest  by  the  attorney  for  the  plaintiff 
upon  an  arrangement  for  the  future  payment  of  the  debt.  The  dis- 
charge was  professed  to  be  granted  in  pursuance  of  an  act  of  the 
legislature  of  Maryland,  and  without  any  express  authority  from 
the  plaintiff.  The  act  of  Maryland,  passed  in  1789,  was  produced, 
by  which  it  was  enacted,  that  when  a  defendant  is  arrested  on  a 
ca.  sa.,  if  the  plaintiff,  with  the  consent  of  the  defendant,  elects 
not  to  call  the  execution  during  the  term  to  which  it  may  be  re- 
turned, it  shall  be  lawful  for  him  to  proceed  against  any  such 
defendant  by  a  new  execution,  or  such  other  process  as  the  nature 
of  the  case  may  require,  in  the  same  manner  as  he  might  have  done 
if  such  defendant  had  not  been  arrested  on  the  former  writ  of 
execution.  Upon  this  evidence  the  defendant  contended,  in  the 
superior  court  of  the  city  of  New  York,  that  he  had  sustained  his 
second  and  third  pleas.  The  court  ruled  otherwise,  and  the  jury, 
by  the  direction  of  the  court,  found  a  verdict  for  the  plaintiff. 
Judgment  beino-  entered  on  the  verdict,  the  defendant  sued  out  a 
writ  of  error. 

S.  Sherwood,  for  the  plaintiff  in  error. 

0.  Bushnell,  for  the  defendant  in  error. 

By  the  court,  Covven,  J.  [who  said  in  part :]  "  But  take  it  that 
tlie  plaintiff  himself  had  signed  the  stipulation  for  a  discharge, 
there  can  be  no  doubt  that  this  action  was  maintainable  within  the 
statute  of  Maryland.  The  argument  against  that  is  founded  on 
the  words  of  the  act,  which,  indeed,  expressly  gives  the  plaintiff  a 
remedy  only  by  farther  execution  or  other  process,  which  latter 
word  may  in  strictness  be  confined  to  a  scire  facias.  .  .  . 


42  CASES   ON    COMMON-LAW    PLEADING. 

"  It  would  be  strange,  after  all  this,  if  courts  could  feel  themselves 
so  fettered  by  words  as  to  say  that  a  statute  which  gives  a  remedy 
by  scire  facias  would  not  extend  to  an  action  of  debt.  There  is 
scarcely  a  difference  even  in  form  between  the  two;  and  none  what- 
ever in  the  substantial  object.  But  allowing  a  new  execution  is 
clearly  enough  to  lay  the  foundation  of  a  similar  construction.  The 
judgment  must  be  affirmed.  .  .  ." 

Judgment  affirmed. 

Per  Ld.  Mansfield  in  Walker  v.  Witter,  Douglass,  6.  "  Debt  may 
be  broiight  for  a  sum  capable  of  being  ascertained,  though  not 
ascertained  at  the  time  of  the  action  brought.  (It  had  been  said  at 
the  bar,  that  the  value  of  Jamaica  currency  was  fluctuating  and 
uncertain.)  It  is  not  necessary  that  the  plaintiff  in  debt  should 
recover  the  exact  sum  demanded." 

"  From  its  origin  down  to  the  time  of  Blackstone  the  sum  sued 
for  was  required  to  be  certain,  and  not  subject  to  subsequent  valua- 
tion or  settlement,  and  the  plaintiff  was  defeated  if  he  failed  to 
prove  the  exact  sum  sued  for.  But  a  rather  general  qualification 
was  added  in  modern  [?  See  the  Six  Carpenters'  Case,  8  Co.  147, 
1610,  A.D.]  times,  to  the  effect  that  it  would  lie  if  the  amount  of 
money  sued  for  could  be  readily  reduced  to  a  certainty.  It  thus 
came  to  be  used  to  recover  the  price  of  property  sold,  or  the  com- 
pensation of  services  rendered,  although  the  price  or  compensation 
was  not  expressly  agreed  on  by  the  parties.  The  action  in  such 
cases  was  helped  out  by  the  inference  of  fact  that  the  parties  must 
have  intended  the  market  price  or  the  customary  compensation, 
which  was  said  to  be  capable  of  being  reduced  to  a  certainty  by 
proof  of  such  price  or  custom.  The  price  or  compensation  was  said 
to  be  certain  under  the  maxim,  Id  certum  est  quod  certum  reddi 
potest."     Martin,  Civil  Procedure,  39. 

RUDDER   V.   PRICE. 

Court  of  Commox  Pleas.     1791. 

KF.poRTEt)  1  Henry  Blackstone,  547. 

If  a  note  is  for  the  payment  of  a  sum  certain  in  instalments  due  at  different 
times,  no  action  of  debt  will  lie  upon  it  until  all  the  days  of  payment  are  past. 

This  was  an  action  of  debt  on  a  promissory  note  payable  by  in- 
stalments, brought  in  a  former  term  by  the  payee  against  an  attor- 
ney, the  maker,  by  bill  of  privilege.     The  first  count,  on  which  the 


ACTIONS    BEFORE   THE    STATUTE   OF    WESTMINSTER   II.  43 

question  before  the  court  arose,  after  stating  the  debt  to  be  £452  10s., 
which  the  defendant  owed  to  and  unjustly  detained  from  the  plain- 
tiff, went  on,  "  For  that  whereas  the  said  Stephen  on  the  thirtieth 
day  of  March  in  the  year  of  our  Lord  1790,  to  wit,  at  Westminster 
in  the  county  aforesaid,  made  his  certain  note  in  writing,  commonly 
called  a  promissory  note,  his  own  proper  hand  and  name  being 
thereto  subscribed,  bearing  date  the  day  and  year  aforesaid,  and 
then  and  there  delivered  the  said  note  to  the  said  Eichard,  by 
which  note  the  said  Stephen  promised  to  pay  to  the  said  Eichard 
by  the  name  of  Mr.  Eichard  Eudder  or  order,  £52  10s.  for  value  re- 
ceived by  him  the  said  Stephen,  the  same  to  be  paid  in  manner 
following  (that  is  to  say)  £20  on  the  first  day  of  July  then  next, 
£20  on  the  first  day  of  October  then  next,  and  £12  10s.  on  the 
first  day  of  January  next,  by  reason  whereof  and  by  force  of  the 
statute  in  such  case  made  and  provided,  the  said  Stephen  became 
liable  to  pay  to  the  said  Eichard  the  said  sum  of  money  in  the  said 
note  specified,  according  to  the  tenor  and  effect  of  the  said  note, 
whereby  an  action  hath  accrued  to  the  said  Eichard  to  demand 
and  have  of  and  from  the  said  Stephen  the  said  sum  of  money  in 
the  said  note  mentioned,  parcel  of  the  said  sum  of  £452  10s.  above 
demanded,  etc."  There  were  also  the  common  money  counts  for 
the  residue  of  the  sum  of  £420  10s.  above  demanded. 

Special  demurrer  to  the  first  count,  the  causes  of  which  were, 
"  That  in  and  by  the  said  first  count  of  the  said  declaration,  it  ap- 
pears that  the  said  sum  of  £52  10s.  in  the  said  notes  mentioned  is 
not  yet  due  or  payable,  nor  can  the  same  be  sued  for  by  the  said 
Eichard  Eudder  till  after  the  first  day  of  January  in  the  year  of 
our  Lord  1791,  and  also  for  that  no  cause  of  action  whatever  is  in 
the  said  first  count  of  the  said  declaration  stated  or  alleged  against 
the  said  Stephen,  etc."  To  the  otlier  counts,  the  defendant  pleaded 
nil  debet,  on  which  issue  was  joined. 

Lawrence,  Sergt.,  in  support  of  the  demurrer.^ 

Marshall,  Sergt.,  contra. 

Lord  Ellenborough.  — "I  take  it,  that  at  the  time  when  Slade's 
case  was  decided,  an  action  of  debt  could  not  be  brought  on  a  debt 
due  by  instalments,  till  all  the  days  of  payment  were  past.  But 
this  was  certainly  not  on  the  ground  that  the  plaintifi'  could  not 
recover  less  than  the  amount  of  the  sum  demanded ;  for  though 
long  before  that  time  the  demand  in  an  action  of  debt  must  have 
been  for  a  thing  certain  in  its  nature,  yet  it  was  by  no  means  neces- 
sary that  the  amount  should  be  set  out  so  precisely  that  less  could 
not  be  recovered.     In  ancient  times  it  was  the  common  action  for 

1  The  arcrumeuts  of  counsel  are  omitted. 


44  CASES    ON   COMMON-LAW   PLEADING. 

goods  sold  and  delivered,  and  for  work  and  labor  done,  in  which 
cases,  though  the  sum  to  be  recovered  is  to  be  ascertained  by  a  jury, 
and  is  given  in  the  form  of  damages,  still  the  demand  is  for  a  thing 
of  a  certain  nature.  The  opinion,  indeed,  which  was  erroneously 
entertained,  that  in  an  action  of  debt  on  a  simple  contract  the  whole 
sum  must  be  proved,  has  been  some  time  since  corrected.  The  idea 
that  an  action  of  debt  could  not  be  brought  till  all  the  days  of  pay- 
ment were  past,  was  founded  on  a  good  ground  of  law,  that  for  one 
contract  there  should  be  but  one  action  ;  and  as  a  contract  to  pay  a 
sum  certain  on  several  days  of  payment  was  considered  as  one  con- 
tract, it  followed  that. no  action  could  he  brought  till  all  the  days  of 
payment  were  elapsed.  The  construction  perhaps  has  been  too  lit- 
eral, for  between  a  contract  to  pay  five  sums  of  £20  on  five  different 
days,  and  a  contract  to  pay  £100  by  five  sums  of  £20  on  differ- 
ent days,  the  distinction  is  merely  verbal  and  consists  in  form ;  the 
substantial  meaning  is  the  same  in  each.  This  construction,  how- 
ever, has  long  prevailed.  The  objection  indeed  is  only  to  the  con- 
struction, not  to  the  rule  of  law,  which  is  evidently  a  just  one  if  the 
contract  be  really  entire,  as  to  do  a  series  of  acts  under  a  certain 
penalty.  The  history  of  the  action  of  assumpsit  given  by  Lord  Coke 
in  the  second  resolution  in  Slade's  case  is  incorrect ;  the  cases  which 
he  there  cites  show  that  the  manner  in  which  the  action  was 
brought  prior  to  Slade's  case,  was  by  stating,  not  a  general  in- 
dehitatus  assumjysit,  for  it  was  not  brought  merely  on  a  promise, 
but  a  special  action  for  a  nonfeasance  by  which  a  special  action  on 
the  case  arose  to  the  plaintiff. 

"  Thus  in  the  case  of  Norwood  v.  Read,  Plowd.  180,  particularly 
referred  to  in  Slade's  case,  which  was  on  a  contract  to  deliver  corn 
at  several  times  and  at  a  stated  price,  the  plaintiff  declared  that  by 
the  non-performance  of  that  engagement  at  a  particular  time  he 
had  sustained  this  special  damage,  namely,  that  relying  on  the  en- 
gagement of  the  defendant  to  deliver  him  the  corn,  he  had  contracted 
with  A.  and  B.  to  deliver  to  them  particular  quantities  out  of  the 
quantity  of  corn  which  he  was  to  receive,  and  was  greatly  injured 
in  his  credit  by  not  being  able  to  make  good  that  contract  with 
them.  Slade's  case  appears  to  me  to  be  the  first  where  general 
damages  for  the  non-performance  of  a  contract  were  laid  as  the 
cause  of  action.  But  not  long  after,  the  action  of  assumpsit  was 
brought  following  the  course  in  which  the  court  had  supported  the 
action  in  Slade's  case,  and  declaring  generally  without  stating  any 
special  damage.  The  plaintiff  was  permitted  to  recover  in  assump- 
sit, yet  he  was  obliged  to  demand  the  whole  damages  for  the  whole 
contract :  and  it  seems  to  have  been  clearly  understood  by  Lord 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER    II.  45 

Coke  when  he  was  reporting  Slade's  case,  that  this  was  the  law  with 
lespect  to  the  action  of  assumpsit,  for  he  states  in  the  fourth  resolu- 
tion in  that  case  that  a  recovery  in  assumpsit  would  be  a  bar  to  an 
action  of  debt  on  the  same  contract ;  the  necessary  result  of  which 
is,  that  in  an  action  of  assumpsit  brought  after  the  lirst  default  the 
plaintiff  was  obliged  to  go  for  damages  for  non-performance  of  the 
whole  contract.     Accordingly,  in  Beclvwith  v.  Nott,  Cro.  Jac.  504, 
the  action  was  brought  on  a  promise  to  pay  £4  by  5s.  a  month,  and 
after  a  default  of  four  months  the  whole  £4  were  given  to  the  plain- 
tiff in  damages.     In  reading  the  report  of  that  case,  the  singularity 
of  permitting  the  plaintiff  to  recover  the  whole  sum,  when  only  four 
months  were  in  arrear,  is  very  striking ;  but  the  court  held  that  the 
jury  had  a  right  to  give,  if  they  thought  fit,  the  whole  damages  for 
the  non-performance  of  the  contract :  and  the  reporter  adds  as  a 
note  of  his  own, '  that  where  a  man  brings  such  an  action  for  breach 
of  an  assumpsit  upon  the  first  day,  it  is  best  to  count  of  damages  for  the 
entire  debt,  for  he  cannot  have  a  new  action.'     So  in  a  case  in  9  Car. 
1,  Peck  V.  Ambler  in  the  margin  of  Dyer,  113,  Berkley  held,  that  if 
an  action  of  assumpsit  be  brought  on  the  first  default,  the  plaintiff 
sliould  recover  damages  for  the  whole  time,  and  should  never  have 
another  action  for  another  default ;  for  the  contract  was  determined 
et  transit  in  rem  judicatam  by  the  first  action.    This  seems  to  have 
been  understood  to  be  the  law  till  the  case  of  Cooke  v.  Whorwood, 
2  Saund.  164,  where  the  court  determined  that  in  assumpsit  to  per- 
form an  award,  whereby  the  defendant  was  awarded  to  pay  the 
plaintiff  several  sums  of  money  at  several  times,  the  action  might 
be  brought  for  such  sum  only  as  was  due  at  the  time  when  the 
action  was  brought,  and  that  the  plaintiff  should  recover  damages 
"accordingly,  and  have  a  new  action  as  the  other  sums  became  due 
toties  quoties.    Antecedent  to  that  time,  the  distinction  between  an 
action  of  assumpsit  and  an  action  of  debt  with  regard  to  money  pay- 
able by  instalments  rested  on  this,  that  the  action  of  debt  would 
not  lie  at  all  till  after  the  expiration  of  all  the  times  of  payment, 
but  the  action  of  assumpsit  might  be  brought  on  the  first  default ; 
but  then  that  one  action  exhausted  the  whole  contract,  and  the 
plaintiff  was  to  recover  damages  for  the  whole,  as  he  could  not 
have  a  fresh  action.     It  seems  from  the  fifth  resolution  in  Slade's 
case,  that  the  action  of  assumpsit  was  considered  as  being  more  ad- 
vantageous than  the  action  of  debt,  because  it  might  be  brought 
after  the  first  default ;  and  there  is  something  in  Lord  Coke's  rea- 
soning in  that  part  of  the  case  which  would  lead  one  to  suppose, 
what  he  certainly  could  not  mean,  that  he  thought  the  action  might 
be  repeated.     The  two  authorities  which  he  there  cites,  —  namely, 


46  CASES    ON    COMMON-LAW   PLEADING. 

Dyer,  113,  Peck  v.  Eedman,  and  Bro.  Abr.  tit.  Action  on  the  Case, 
pi.  108,  —  by  no  means  confinu  the  position  that  assumpsit  would  lie 
after  the  first  default  of  payment,  for  that  default :  the  note  in 
Broke  is,  '  that  in  Trinity  Term  in  the  fifth  of  Queen  Mary,  it  was 
agreed  in  the  Common  Pleas,  that  if  a  man  undertake  to  pay  £20 
annually  for  the  marriage  of  his  daughter,  for  four  years,  and  fail 
in  the  payment  of  two  years,  the  plaintiff  might  have  an  action  of 
assumpsit  for  the  non-payment  of  the  annuity  for  two  years,  al- 
though the  other  two  years  were  not  come.'  But  this  note  is  evi- 
dently an  interpolation,  for  it  appears  from  Dyer,  163  h,  that  Broke 
died  upon  the  circuit  in  the  vacation  between  Easter  and  Trinity 
Terms  in  the  fourth  and  fifth  of  Philip  and  Mary  :  and  besides  this, 
the  determination  was  directly  the  contrary ;  for  the  case  to  which  the 
note  refers  was  Joscelin  v.  Shelton,  reported  3  Leon.  pi.  11,  Moore, 
13,  Bendloe  in  Keilway,  209,  and  was  this, '  Assumpsit  was  brought 
on  an  agreement  by  the  defendant  to  pay  to  the  plaintiff  400  marks 
rn  seven  years  by  annual  portions,  in  consideration  of  the  marriage 
of  the  plaintiff's  son  with  the  defendant's  daughter,  and  after  verdict 
the  judgment  was  arrested  because  the  whole  seven  years  were  not 
expired,  one  of  them  being  to  come  when  the  action  was  brought.' 
The  other  case  cited  by  Lord  Coke,  of  Peck  v.  Eedman,  Dyer,  113, 
was  of  an  agreement  by  the  defendant  to  deliver  to  the  plaintiff 
twenty  quarters  of  barley  every  year  during  their  lives,  for  which 
the  plaintiff  was  to  pay  four  shillmgs  for  each  quarter,  and  the 
breach  of  the  agreement  was  that  the  defendant  had  failed  in  the 
delivering  of  eleven  quarters  for  three  years,  by  which  the  plaintiff 
(the  special  damage  being  similar  to  that  stated  in  the  case  which 
I  mentioned  from  Plowden)  was  injured  in  his  credit,  and  the  profit 
he  would  otherwise  have  made,  to  tlie  value  of  £30  ;  but  it  would 
have  been  a  very  singular  thing  if  the  rule  of  construction,  which 
was  laid  down  in  actions  of  debt,  had  been  applied  to  such  a  contract 
as  this,  the  proof  of  which,  in  all  the  terms  of  it,  was  not  complete 
as  long  as  both  the  parties  were  alive.  The  jury  gave  damages  for 
three  years,  and  the  question  was  whether  these  damages  were  for 
the  whole  contract  or  not.  Dyer  states  that  three  judges  were  of 
opinion  that  this  recovery  was  a  discharge  of  the  whole  contract, 
but  that  the  other  three  held  (which  seems  much  more  reasonable) 
that  it  was  not;  however,  as  the  court  was  divided,  no  determina- 
tion was  given,  and  the  case  ends  with  ideo  qucere.  In  the  older 
cases,  it  is  admitted  that  an  action  of  debt  could  not  be  brought 
for  the  payment  of  money  due  by  instalments  till  all  the  days  were 
past ;  the  meaning  of  this  was  that  no  action  would  lie.  The  incon- 
venience of  this  rule  put  the  judges  upon  a  method  of  getting  rid 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER   II.  47 

of  the  supposed  difficulty  by  having  recourse  to  the  action  of  as- 
sumpsit, which,  where  the  assumpsit  proceeds  in  demand  of  money, 
is  in  truth  and  substance,  and  so  taken  to  be  in  some  of  the  cases, 
a  more  special  action  of  debt ;  for  where  the  demand  is  for  the  pay- 
ment of  a  sum  of  money,  it  is  a  technical  fiction  to  call  the  sum  re- 
covered damages:  it  is  the  specific  debt,  and  the  jury  give  the 
specific  thing  demanded.  In  Owen,  42,  Hunt's  case,  the  incon- 
venience of  the  rule  which  the  Chief  Justice  Anderson  was  about 
to  proceed  upon,  though  the  determination  was  contrary  to  his 
opinion,  is  so  very  obvious  that  I  mention  it  as  a  striking  instance 
of  the  mischief  which  would  have  arisen  if  a  method  had  not  been 
found  out  to  remedy  it.  It  was  an  action  on  the  case  on  an  agree- 
ment in  consideration  that  the  plaintiff  would  permit  the  defendant 
to  occupy  certain  lands  for  five  years,  to  pay  £20  a  year  by  equal 
half-yearly  payments  of  £10,  after  a  year  and  a  half  were  ex- 
pired the  action  was  brought  for  the  rent  then  in  arrear,  and  Ander- 
son was  of  opinion  that  the  plaintiff  could  recover  no  rent  till  the 
five  years  were  elapsed,  but  the  other  judges  were  of  a  different 
opinion.  In  the  cases  in  Cro.  Eliz.  807,  Cro,  Jac.  504,  and  Cro. 
Car.  241,  assumpsit  was  brought  for  money  due  by  instalments, 
and  so  attentive  were  the  court  to  the  rule  at  that  time  that  the 
plaintiff  in  the  two  latter  cases  recovered  in  damages  tbe  whole  sum, 
including  a  payment  not  due,  and  the  court  supported  the  recovery, 
and  gave  judgment  for  him,  saying  in  one  of  the  cases,  Milles  v. 
Milles,  Cro.  Car.  241  (where  the  sum  to  be  paid  was  £20,  namely, 
£10  in  one  year,  and  £10  in  another,  and  the  whole  £20  given  as 
damages  for  the  non-paymetit  of  the  first  £10),  that  they  would  in- 
tend that  the  damages  of  £20  were  given  only  for  the  first  £10. 
There  is  so  little  reason  in  this  that  there  is  some  difficulty  to  follow 
it ;  but  the  foundation  of  the  opinion  fails  when  it  is  admitted  that 
the  sum  really  due  may  be  recovered  notwithstanding  more  is  de- 
manded than  can  be  made  good  in  evidence.  I  cannot  indeed 
devise  a  substantial  reason  why  a  promise  to  pay  money  not  per- 
formed does  not  become  a  debt,  and  why  it  should  not  be  recover- 
able, eo  nomine,  as  a  debt.  But  the  authorities  are  too  strong  to  be 
resisted.  Though  the  law  has  been  altered  with  respect  to  actions 
of  assumpsit,  no  alteration  has  taken  place  as  to  actions  of  debt. 
The  note  in  question  is  for  the  payment  of  a  sum  certain  at  dif- 
ferent times,  must  be  considered  as  a  debt  for  the  amount  of  that 
sum,  and  being  so  considered,  no  action  of  debt  can  be  maintained 
upon  it  till  all  the  days  of  payment  be  past." 

J,udgment  for  the  defendant. 
Afterwards  the  plaintiff  had  leave  to  amend. 


48  CASES    ON    COMxMOX-LAW    TLEADING, 

Section  II. 
DETINUE. 

JC.  lent  his  horse  to  JB.  for  «  day.  B.  kept  it  for  a  year  and  a  day., 
always  refusing  to  return  it.  Clearly  JC.  cannot  have  debt.  He 
may,  hovjever,  have  detinue,  an  action  closely  akin  to  debt.  The 
essence  of  detinue  is  the  recovery  of  a  specific  chattel. 

THE    HISTOEY    OF   DETINUE 


Whence  came  the  writ  of  detmue  ?  We  have  already 
seen  that  anciently  debt  lay  for  a  certain  snm  of  money  or 
a  certain  chattel ;  that  in  later  years  an  action  of  debt  was 
refused  for  a  certain  chattel,  and  limited  to  money  and  the 
anomalous  case  of  a  certain  quantity  of  a  chattel  (like  malt 
or  wheat)  not  in  its  nature  specific.  The  parting  of  the 
ways  between  the  action  of  debt  for  the  recovery  of  a  sum 
certain  and  the  action  for  the  recovery  of  a  chattel  certain 
marks  the  origin  of  detinue.  The  writ  of  debt  in  Glanvill's 
day  contained  words  of  "  owing"  and  "  deforcing" ;  no  other 
word  in  English  legal  history  is  so  eloquent  of  the  propri- 
etary nature  of  the  ancient  writ  of  debt  as  is  Glanvill's 
"deforces."  Soon,  however,  the  "deforces"  was  dropped, 
and  the  writ  became  "  dehet  et  iniuste  detinet "  —  defendant 
"  owes  and  unjustly  detains."  To  speak  of  "  owing  "  money 
was  perfectly  natural ;  the  idea  of  owing  a  chattel  was  in- 
congruous. Who  ever  heard  of  owing  an  ox  ?  But  it  is  a 
usual  and  an  easy  use  of  words  to  speak  of  "  detaining " 
one's  ox,  or  of  deforcing  of  one's  ox.     Every  writ  of  debt 


ACTIONS   BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  49 

for  chattels,  therefore,  was  tainted  with  a  word  that 
shocked  the  sensibiHties  of  the  pleader.  Had  the  writ  of 
detinue  developed  in  Glanvill's  day,  it  would  probably  have 
been  called  the  writ  of  deforcement  (deforciat),  coming  at 
a  later  day,  it  vitalized  the  lifeless  word  ^^  detinet"  in  the 
writ  of  debt,  and  became  the  writ  of  detinue.  It  lay  to 
recover,  anciently,  a  specific  chattel,  rightfully  taken,  wrong- 
fully detained ;  later,  any  specific  chattel,  wrongfully  de- 
tained. From  the  following  pages,  the  student  may  clothe 
this  skeleton  history  with  living  flesh. 

WEIT  IN   DETINUE. 

The  King  to  the  sheritf,  etc.  Command  A.  that,  etc.  he  render  to 
B.  a  certain  writing  by  which  B.  hath  given  and  granted  all  his  goods 
and  chattels  lately  being  in  the  manor  of  N.  to  I.  of  L.  which  he 
unjustly  detains  from  him,  etc. 

Fitzherbert's  Natura  Brevium,  138.^ 

ORAL   DECLARATION  2   UPON   A   WRIT   OF   DETINUE.^ 

"  In  the  case  of  a  bailment,  the  plaintiff  said,  'This  showeth  you  A., 
that  B.  wrongfully  detains  from  him  chattels  to  the  value  of  £20,  and 
therefore  wrongful]\-,  for  that  whereas  the  said  A.,  on  a  certain  day, 
year,  and  place,  bailed  to  the  aforesaid  B.  linen  and  woollen  cloth,  to 
keep  till  he  demanded  it,  the  said  A.,  on  such  a  day,  year,  and  place 
requested  the  said  B.  to  return  the  aforesaid  chattels,  j-et  he  was  not 
willing  yet  to  return  them,  nor  yet  will,'  etc."  * 

Reported  I  Rotuli,  6  ;   Abbrev.  Plac.  5,  Anno  1194,^  Savoring  of  Detinue. 

"  Richard  de  W.  puts  all  his  land  and  whatever  he  has  in  pledge 
to  convict  Henry  de  M.  that  his  (Richard's)  brother  handed  over 
to  him  a  war-horse  on  his  march  to  Jerusalem,  which  he  thus  far 
detains.  Henry  defends  and  says  that  he  gave  to  his  own  lord  a 
palfrey  for  his  inarch,  and  liis  lord  gave  to  him  a  trotting  pack 
horse.  Pledges  of  Henry  for  standing  to  right  (i.  e.  proving  his 
plea).     Roger  E.  and  Albin." 

1  Big.  L.  C.  on  Torts,  420.  "  The  first  mention  of  this  writ  is  in  the  Statute  of 
Wales  (Statulnr)i   Walliw,  12  Edw.  I.)." 

2  For  modern  declaration  in  detinue,  see  Dame  ;'.  Dame,  vast,  52. 

*  See  also  Old  Nat.  Brev.  40  6,  41  ;  2  Reeves's  Hist.  379 ;  Finl.  Ed. ;  Big.  L.  C. 
Torts,  421. 

*  Big.  L.  C.  Torts,  421. 
6  2  Big.  Hist.  Proc.  283. 

4 


50  CASES   ON    COMMON-LAW   PLEADING. 

THE  PAKTING   OF    THE   WAYS  BETWEEN   DEBT   AND 

DETINUE.     DEBT   IN   THE   DEBET   AND 

IN   THE   DETINET. 

Reported  20  Edward  I.  188.     Anno  1292. 

Eoger  Mortymer  brought  a  writ  of  detinue  of  a  charter  against 
dame  Maud  de  Mortymer ;  who  came,  by  attorney,  and  said,  Sir, 
on  the  day  and  in  the  year  in  which  they  say  that  the  charter  was 
bailed  to  dame  Maud,  Koger  le  Mortymer  her  husband  was 
alive ;  so  that  she  could  not  then  bind  herself.  Judgment  if  she 
be  bound  to  answer.  If  you  adjudge  that  she  ought,  she  will  do 
so  willingly.  —  Huntindone.  Sir,  our  plaint  is  of  a  tortious  detinue 
of  a  charter  which  the  lady  now  at  this  time  detains  from  us. 
Judgment  if  she  ought  not  to  answer  as  to  her  tort.  — ■  Louther. 
The  cause  of  your  action  is  the  bailment;  and  at  the  time  [of 
the  bailment]  she  could  not  bind  herself.  Judgment  if  now  she 
ought  to  answer  of  a  thing  for  which  she  could  not  bind  herself.  — 
Spigornel.  If  you  had  bailed  to  the  lady  when  she  was  coverte, 
etc.,  thirty  marks  to  take  care  of,  and  to  restore  them  when  you 
should  demand  them,  would  she  be  bound  now  to  answer  ?  I  think 
not.-  So  in  this  case.  —  Howard.  This  case  is  not  similar.  In 
a  writ  of  debt  you  would  say,  "  she  owes,"  and  here  you  will  say, 
"  which  she  unjustly  detains  " ;  judgment,  etc.  And  on  the  other 
hand,  our  action  arises  from  the  tortious  detinue  and  not  from  the 
bailment ;  judgment,  etc.  —  Louther.  As  before.  —  Howard.  If  I 
had  bailed  twenty  shillings  or  a  charter  to  a  woman,  in  this  case 
I  should,  during  her  husband's  life,  have  an  action  against  the  hus- 
band and  wife  jointly  :  for  the  same  reason  I  should  have  a  good  ac- 
tion against  tlie  woman  alone,  after  the  death  of  her  husband,  in 
respect  of  a  bailment  made  to  the  woman  ;  and  in  like  manner  I 
should  have  a  good  action  against  the  woman  alone  after  tlie  death 
of  her  husband  in  respect  of  a  bailment  made  to  the  husband  and 
wife.  So  in  this  case,  in  respect  of  a  thing  bailed  to  the  wife  alone 
during  the  life  of  her  husband. 

THE   DISTINCTION    BETWEEN   DEBT   AND  DETINUE 

DRAWN. 

Reported  Y.  B.  13  Edward  III.  244.1     Anno  1339. 

Detinue  of  chattels  to  the  value  of  £100  against  an  abbot  by  a 
man  and  his  wife,  on  a  bailment,  made  by  the  father  of  the  wife 

1  The  note  to  the  above,  substantially  a  repetition,  is  here  omitted. 


ACTIONS    BEFORE   THE   STATUTE   OF   WESTMINSTER    II.  51 

when  she  was  under  age,  of  chattels  to  be  delivered  to  his  daughter 
when  she  was  of  full  age,  at  her  will ;  and  they  counted  that  he 
delivered  pots,  linen,  cloths,  and  £20  in  a  bag  sealed  up,  etc. — 
Pole.  He  demands  money,  which  naturally  sounds  in  an  action  of 
debt  or  account ;  judgment  of  tlie  count.  —  Stouford.  We  did 
not  count  of  a  loan  which  sounds  in  debt,  nor  of  a  receipt  of 
money  for  profit,  which  would  give  an  action  of  account,  but  of 
money  delivered  in  keeping  under  seal,  etc.,  which  could  not  be 
changed ;  and  if  your  house  were  burnt,  that  would  be  an  answer. 
—  Schardelowe.  Answer  over.  —  Pole.  We  do  not  detain  in 
manner  as  he  has  counted;  ready  to  defend  by  our  law. —  Stou- 
ford. We  have  counted  of  the  bailment  made  by  another ;  where- 
fore, do  you  intend  this  to  be  your  answer  ? 


THE   CLOSE    RELATIONSHIP   OF    DEBT   AND   DETINUE 
AFTER   THE   TIME    OF   EDWARD    I.i 

Reported  Y.  B.  17  Edward  III.  141. 2     Anno  1342-3. 

Henry  le  Warde  and  Margaret  his  wife  brought  a  writ,  and  de- 
manded the  reasonable  part  of  the  goods  of  Margaret's  first  husband 
against  the  executors  of  her  first  husband ;  and  they  demanded  £200, 
and  counted  how  by  the  custom  of  the  realm  a  moiety  of  the  goods 
which  were  her  husband's  on  the  day  on  wliich  he  died  belonged  to 
Margaret,  and  they  showed  how  the  husband  had  goods  and  chattels 
on  such  a  day,  and  in  such  a  place,  when  he  died,  to  the  amount  of 
£400,  whereof  a  moiety  belongs  to  her  portion,  because  he  had  no 
issue,  etc. — Thorpe.  This  writ  is  brought  against  two  executors,  and 
notwithstanding  that  the  grand  distress  is  served,  though  it  be  the 
fact  that  one  of  them  appears,  one  shall  not  answer  without  the 
other,  because  this  is  an  action  of  detinue  of  which  the  statute^ 
makes  no  mention,  but  only  of  an  action  of  debt.  —  Grene.  This 
action  is  properly  an  action  of  debt,  because  the  goods  could  not 
be  hers  during  the  life  of  her  husband,  nor* can  they  be  hers  after 
his  death  until  she  has  recovered  them. — Hillary.  The  process  is 
quite  the  same  in  debt  and  in  detinue;  and  in  a  plea  of  detinue 
the  essoin  and  the  warrant  of  attorney  shall  be  in  the  words  "c/c 
placito  dehiti"  —  Thorpe.  That  is  only  a  form  ;  but  the  actions  are 
diiferent;  and  Privilcgia  Statuti  sunt  stricti  juris  ;  and  in  detinue 

1  The  line  l)etween  tliese  actions  was  first  clearly  drawn  in  his  time. 

2  For  a  lunger  report,  see  17  Edw.  III.  145.  The  version  given  is  shorter,  clearer, 
and  hetter  adapted  to  this  work. 

3  9  Edw.  III.  c.  3. 


52  CASES   ON   COMMON-LAW   PLEADING. 

of  a  writing  against  executors  one  shall  not  answer  without  the 
other.  — Hillary.  We  have  spoken  among  ourselves,  and  it  seems 
to  us  that  process  in  detinue  as  well  as  in  debt  is  included  in  the 
statute  ;  and  therefore  answer.  —  And  afterwards  the  writ  abated 
for  false  Latin. 

DEBT  AND  DETINUE   MAY  BE   JOINED    IN   THE  SAME 
ACTION,  FOR  THEY  AEE  OF  THE  SAME  NATUEE.i 

DALSTON,  BART.,  v.  JANSON. 

Ix  THE  King's  Bench.     1695. 

Reported  5  Modern,  90. 

Doubts  as  to  joinder  of  detinue  and  debt. 

This  was  an  action  on  the  case  brought  against  a  common  carrier 
upon  the  custom,  and  also  a  trover  was  laid  in  the  same  declaration. 
Upon  not  guilty  pleaded,  there  was  a  verdict  for  the  plaintiff. 

It  was  moved  in  arrest  of  judgment,  that  these  are  different 
actions,  and  ought  not  to  be  joined  in  one  and  the  same  declaration  ; 
for  one  is  grounded  upon  a  contract  in  law,  to  which  non  assumpsit 
is  the  proper  plea,  and  the  other  upon  a  tort,  etc. 

To  which  it  was  answered  that  .  .  .  these  are  not  actions  of 
different  natures,  and  therefore  they  may  be  joined ;  and  the  like 
has  been  done  in  many  other  cases ;  as  debt  upon  a  bond  and 
detinue  were  joined,  etc. 

Curia.  "  A  plaintiff  cannot  join  two  actions  which  require  several 
issues  ;  so  that  the  question  now  is,  whetlier  actions  may  be  joined 
where  the  same  pleading  will  answer  both  ?  In  such  cases  as  this, 
the  defendant  in  former  times  pleaded  particularly  to  the  neglect ; 
but  it  has  been  lately  ruled,  that  not  guilty  is  a  good  plea.  But  it 
seems  strange,  that  debt  and  detinue  should  be  joined,  because  those 
actions  have  different  judgments." 

Upon  the  first  debate  of  this  case,  they  inclined  for  the  plaintiff. 
But  afterwards,  when  Rokeby,  justice,  came  into  the  court  in 
Michaelmas  Term  following,  they  were  all  of  opinion  that  these 
were  distinct  actions  ;  for  an  action  against  a  common  carrier,  upon 
the  custom  of  England,  is  not  so  much  upon  a  tort  as  upon  a  con- 
tract ;  for  by  receiving  the  goods,  and  taking  a  reward  for  the  car- 
riage, the  defendant  implicitly  undertakes  to  deliver  them  safely,  and 
therefore  the  law  implies  a  contract  to  answer  the  value,  if  robbed. 
The  case  of  Matthew  v.  Hopkins,^  the  carrier  of  Tiverton,  was  upon 

i  The  arguments  are  not  reported  iu  full,  and  the  facts  are  abridged. 
2  1  Sid.  244,  1  Vent.  365. 


ACTIONS    BEFORE   THE    STATUTE    OF   WESTMINSTER   II.  53 

the  common  custom  of  the  realm,  for  negligently  carrying  a  bag  of 
wool,  in  which  there  was  fifty  pounds,  and  in  the  same  declaration 
there  was  a  trover  for  the  said  money ;  and  it  was  held,  that  these 
were  different  actions,  and  ought  not  to  be  joined,  which  is  the  case 
in  point.     So  judgment  was  given  for  the  defendant. " 

ViNER,  Abridgment,  "Actions,"  40,  Pl.  22. 

*'  A  man  may  have  debt  and  detinue  in  one  and  the  same  writ 
by  several  prsecepes,  for  they  are  of  one  and  the  same  nature.  Br. 
Joinder  in  Action,  pl.  97.  cites  3  H.  IV.  13." 

NATURE   AND   CHARACTERISTICS   OF  DETINUE. 

"  In  this  action  of  detinue  it  is  necessary  to  ascertain  the  thing 
detained,  in  such  manner  as  that  it  may  be  specifically  known  and 
recovered.  Therefore  it  cannot  be  brought  for  money,  corn,  or  the 
like ;  for  that  cannot  be  known  from  other  money  or  corn  ;  unless 
it  be  in  a  bag  or  sack,  for  then  it  may  be  distinguishably  marked. 

"  In  order  therefore  to  ground  an  action  of  detinue,  which  is  only 
for  the  detaining,  these  points  are  necessary  :  1.  That  the  defend- 
ant came  lawfully  into  possession  of  the  goods,  as  either  by  delivery 
to  him,  or  finding  them;  2.  That  the  plaintiff  have  a  property; 
3.  That  the  goods  themselves  be  of  some  value ;  and  4.  That 
they  be  ascertained  in  point  of  identity.  "     3  Blackstone,  Com.,  152. 

"  The  action  of  detinue  is  the  only  remedy  by  suit  at  law  for  the 
recovery  of  a  personal  chattel  in  specie,  except  in  those  instances 
where  the  party  can  obtain  possession  by  replevying  the  same,  and 
by  action  of  replevin."     Chitty,  Pleading,  136. 

DETINUE   IS  THE   ONLY   REMEDY   BY   SUIT  AT  LAW.] 

DUKE  OF   SOMERSET  v.  COOKSON. 

In  the  High  Court  of  Chancery.     1735. 

Reported  3  Pere  Williams,  389. 

The  Duke  of  Somerset,  as  lord  of  the  manor  of  Corbridge,  in 
Northumberland  (part  of  the  estate  of  the  Piercys,  late  earls  of 
Northumberland),  was  entitled  to  an  old  altar-piece  made  of  silver, 
remarkable  for  a  Greek  inscription  and  dedication  to  Hercules. 
His  Grace  became  entitled  to  it  as  treasure  trove  within  his  said 
manor.  This  altar-piece  had  been  sold  by  one  who  had  got  the  pos- 
session of  it,  to  the  defendant,  a  goldsmith  at  Newcastle,  but  who  had 
notice  of  the  Duke's  claim  thereto.  The  Duke  brought  a  bill  in 
equity  to  compel  the  delivery  of  this  altar-piece  in  specie,  unde faced. 


54  CASES   ox   COMMON-LAW    PLEADING. 

The  defendant  demurred  as  to  part  of  the  bill,  for  that  the  plain- 
tiff had  his  remedy  at  law,  by  an  action  of  trover  or  detinue,  and 
ought  not  to  bring  his  bill  in  equity  ;  that  it  was  true,  for  writings 
savoring  of  the  realty  a  bill  would  lie,  but  not  for  anything  merely 
personal ;  any  more  than  it  would  for  a  horse  or  a  cow.  So,  a 
bill  might  lie  for  an  heirloom  ;  as  in  the  case  of  Pusey  v.  Pusey, 
1  Vern.  273.  And  though  in  trover  the  plaintiff  could  have  only 
damages,  yet  in  detinue  the  thing  itself,  if  it  can  be  found,  is  to  be 
recovered ;  and  if  such  bills  as  the  present  were  to  be  allowed,  half 
the  actions  of  trover  would  be  turned  into  bills  in  chancery. 

On  the  other  side  it  was  urged,  that -the  thing  here  sued  for,  was 
matter  of  curiosity  and  antiquity  ;  and  though  at  law  only  the  in- 
trinsic value  is  to  be  recovered,  yet  it  would  be  very  hard  that  one 
who  comes  by  such  a  piece  of  antiquity  by  wrong,  or  it  may  be  as  a 
trespasser,  should  have  it  in  his  power  to  keep  the  thing,  paying 
only  the  intrinsic  value  of  it :  which  is  like  a  trespasser's  forcing 
the  right  owner  to  part  with  a  curiosity,  or  matter  of  antiquity,  or 
ornament,  nolens  volens.  Besides,  the  bill  is  to  prevent  the  defend- 
ant from  defacing  the  altar-piece,  which  is  one  way  of  depreciat- 
ing it;  and  the  defacing  may  be  with  an  intention  that  it  may 
not  be  known,  by  taking  out,  or  erasing  some  of  the  marks  and 
figures  of  it ;  and  though  the  answer  had  denied  the  defacing  of  the 
altar-piece,  yet  such  answer  could  not  help  the  demurrer ;  that  in 
itself  nothing  can  be  more  reasonable  than  that  the  man  who  by 
wrong  detains  my  property,  should  be  compelled  to  restore  it  to  me 
again  in  specie  ;  and  the  law  being  defective  in  this  particular,  such 
defect  is  properly  supplied  in  equity. 

Wherefore  it  was  prayed  that  the  demurrer  might  be  overruled, 
and  it  was  overruled  accordingly. 

THOMAS   KETTLE   v.   THOMAS   BROMSALL. 

In  the  Common  Pleas.     1738. 
Reported  Willes,  118. 

Willes,  Lord  Chief  Justice,  gave  the  opinion  of  the  court  as 
follows : 

Detinue,  The  plaintiff  declares  in  the  first  count  that  he  was 
possessed  of  a  handle  of  a  knife  with  an  old  English  inscription 
purporting  it  to  be  a  deed  of  gift  to  the  monastery  of  St.  Albans,  a 
ring  with  an  antique  stone  with  one  of  the  Cjesar's  heads  upon  it  in 
basso-relievo,  and  of  several  other  things  of  the  like  nature,  partic- 
ularly specified  in  the  declaration,  and  laid  togetlier  to  be  of  the 
value  of  £500  as  of  his  own  proper  goods ;  and  that  being  so  pes- 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER    II.  55 

sessed  he  casually  lost  the  same,  and  that  afterwards  by  finding 
they  came  unto  the  hands  and  possession  of  the  defendant,  by 
reason  whereof  an  action  accrued  to  the  plaintiff  to  demand  the 
same  of  the  defendant. 

In  the  second  count  he  declares  that  he  delivered  to  the  defend- 
ant the  same  things,  specifying  them  again,  of  the  value  together 
of  X500  to  be  safely  kept  and  to  be  delivered  to  the  plaintiff  when 
required ;  that  nevertheless  the  defendant,  though  often  requested, 
has  not  delivered  the  same  or  any  part  thereof  to  the  plaintiff,  but 
refused  and  still  doth  refuse  to  deliver  the  same  and  unjustly  de- 
tains them ;  to  the  plaintiff's  damage  £1000. 

The  defendant  pleads  that  the  plaintiff  delivered  to  him  the  said 
goods  and  chattels  to  take  care  of  them  as  his  own  proper  goods, 
and  to  show  them  to  any  person  or  persons  to  know  the  value  of 
them  ;  and  that  tlie  defendant  having  the  said  goods  and  chattels  in 
his  pocket  to  show  them  to  such  persons  as  were  likely  to  tell  him 
the  value  of  the  same,  the  said  goods  and  chattels  were  feloniously 
taken  from  him  by  some  person  unknown  to  him  without  his  wilful 
default  or  privity ;  and  this  he  is  ready  to  verify,  therefore  he  prays 
judgment  whether,  etc. 

The  plaintiff  replies  that  he  did  not  deliver  to  the  defendant  the 
said  chattels,  in  the  declaration  mentioned  to  take  care  of  them  as 
his  own  proper  chattels,  or  to  show  them  to  any  person  or  persons 
to  know  the  value  of  them,  as  the  defendant  by  the  said  plea  hath 
alleged ;  and  concludes  to  the  country. 

The  defendant  demurs;  and  for  causes  of  demurrer  shows  that 
the  plaintiff  doth  not  by  his  replication  fully  answer  to  the  matter 
in  bar  above  pleaded,  and  that  the  said  replication  concludes  to 
issue  when  it  ought  to  have  concluded  with  an  averment,  and 
thereby  have  given  the  defendant  an  opportunity  to  rejoin,  and  to 
have  put  the  whole  matter  in  issue  in  a  direct  affirmative  and 
negative. 

The  plaintiff"  joins  in  demurrer. 

Sergt.  Comyns,  for  the  defendant,  took  three  objections ;  two  to 
the  declaration  and  one  to  the  replication.^ 

1st.  That  the  writ  is  for  £1000  and  the  goods  are  laid  in 
the  declaration  to  be  but  of  the  value  of  £500.  But  there  is  not 
the  least  color  for  this  objection ;  for  there  are  two  counts,  and  the 
goods  in  each  are  laid  to  be  of  the  value  of  £5 (JO  and  the  damage 
at  £1000. 

2dly.  That  the  first  count  is  in  trover,  and  the  second  in  de- 
tinue ;  and  that  trover  and  detinue  cannot  be  joined.     That  if  the 

1  The  objection  to  the  replication  is  not  material  here. 


56  CASES    ON    COMMON-LAW    PLEADING. 

first  be  taken  to  be  in  trover,  there  is  no  conversion ;  and  if  in  de- 
tinue, there  is  no  demand;  and  consequently  that  it  cannot  be  good 
in  either.  To  show  that  trover  and  detinue  cannot  be  joined,  he 
cited  8  Co,  87  b,  Buckmere's  Case ;  because  they  require  different 
pleas.i 

But  we  are  all  of  opinion  that  this  objection  will  not  hold ;  for 
that  both  counts  are  in  detinue.  Detinue  will  lie  for  things  lost 
and  found,  as  well  as  for  things  delivered ;  so  it  is  expressly  laid 
down  in  Fitz.  N.  B.  tit.  "Detinue"  (E),  a  book  of  the  greatest  au- 
thority. It  was  so  also  held  as  long  ago  as  the  27  and  34  Hen.  VIII, 
and  there  are  several  cases  to  the  same  purport  in  Glisson  and 
Gulston,  tit.  "  Detinue,"  a  book  of  good  credit.  There  are  likewise 
several  precedents  of  this  sort  in  Townsend's  tables,  tit.  "  Detinue," 
a  book  of  very  good  authority.  And  it  would  be  very  absurd  if  it 
were  otherwise;  for  if  so,  a  person  might  be  greatly  injured,  and 
have  no  adequate  remedy.  For  in  trover  only  damages  can  be 
recovered ;  but  the  things  lost  may  be  of  that  sort,  as  medals,  pic- 
tures, or  other  pieces  of  antiquity  (and  this  seems  to  be  the  present 
case),  that  no  damages  can  be  an  adequate  satisfaction,  but  the 
party  may  desire  to  recover  the  things  themselves,  which  can  only 
be  done  in  detinue. 

So  that  taking  it  for  granted  (which  I  believe  is  so)  that  trover 
and  detinue  cannot  be  joined,  yet  this  objection  will  be  of  no  weight 
in  this  present  case ;  and  this  likewise  will  answer  the  other  part 
of  the  objection ;  for  though  there  be  no  request  or  conversion  in 
the  first  count,  yet  there  is  a  request  laid  in  the  last  count,  and  if 
one  of  the  counts  be  good  the  general  demurrer  to  both  will  not 
hold. 

Judgment  for  the  plaintiff. 

FOR  THE   EECOVERY   OF   CHATTELS   WEONGFULLY 
TAKEN   OR   DETAINED. 

ELIZ.    COUPLEDIKE  v.   HESTER   COUPLEDIKE. 

In  the  King's  Bench.     1605. 

Reported  Cro.  Jac.  39. 

Error  of  a  judgment  in  detinue  in  the  Common  Pleas. 

A  second  2  error  assigned  was.  For  that  the  writ  supposeth  a  de- 
tainer de  und  domo  vocat  a  beehouse,  which  cannot  be,  that  a 
detinue  should  lie  of  an  house.^  —  Wherefore  it  was  reversed. 

1  See  Brown  v.  Dixon,  1  Durnf.  and  E.  276. 

2  The  first  error  assigned  related  to  matter  not  here  relevant. 
8  But  see  Dame  v.  Dame,  43  N.  H.  37. 


ACTIONS   BEFORE    THE    STATUTE    OF   WESTMINSTER   II.  57 

"EXCEPT   IN   THOSE   INSTANCES   WHEEE   THE    PAETY 

CAN   OBTAIN   POSSESSION   BY   EEPLEVYING   THE 

SAME,   AND   BY   AN  ACTION   OF   EEPLEVIN." 

DAME   V.  DAME. 

Supreme  Court  of  New  Hampshire.     1861. 

Reported  43  N.  H.  37. 

In  replevin,  subject  to  an  exception  hereinafter  stated,  the  original  taking 
must  be  wrongful:  in  detinue,  at  the  early  law,  it  must  have  been  rightful; 
at  the  later  law,  it  may  be  wrongful  or  rightful. 

This  was  an  action  of  detinue,  brought  to  recover  a  house  and 
barn  alleged  to  be  the  property  of  the  plaintiff,  and  situated  on  the 
land  of  the  defendant,  in  Farmington,  in  said  county,  all  of  which 
is  fully  set  forth  in  the  plaintiff's  declaration,  which  is  as  follows : 

"  In  a  plea  of  detinue  for  that  whereas  the  plaintiff  heretofore,  to 
wit,  on  the  first  day  of  July,  1856,  at  Farmington  aforesaid,  was 
lawfully  possessed  of  a  certain  house  and  a  certain  barn,  both  sit- 
uated on  the  land  of  the  said  Daniel  Dame,  being  the  house  built 
by  the  plaintiff  in  the  year  1842,  said  house  being  about  thirty-six 
feet  long  and  about  twenty-six  feet  wide,  and  one  story  and  one 
quarter  high,  and  of  the  value  of  $300.00 ;  and  said  barn  being 
about  twenty-four  feet  long  and  about  twenty  feet  wide,  and  of  the 
value  of  $200.00,  situated  between  the  house  of  Eleazer  Eand  and 
the  house  now  owned  by  Benjamin  Chesley,  on  the  left  hand  side  of 
the  road  leading  from  the  Bay  road,  so  called,  to  the  Ten  Eod  road, 
so  called,  as  one  goes  toward  the  Ten  Eod  road,  as  of  his  own  house 
and  barn,  and  being  so  possessed,  the  said  plaintiff  afterward,  to 
wit,  on  the  third  day  of  July,  1856,  casually  lost  the  same  out  of 
his  possession,  which  thereafterward,  to  wit,  on  the  same  day,  came 
into  the  hands  and  possession  of  the  said  Daniel  Dame,  by  finding ; 
and  the  plea  further  saith,  that  although  the  said  Daniel  Dame 
well  knew  that  the  said  house  and  barn  were  the  proper  house  and 
barn  of  the  plaintiff,  and  although  requested  by  the  said  plaintiff, 
to  wit,  at  said  Farmington,  on  the  nineteenth  day  of  May,  1860,  to 
deliver  the  same  to  the  plaintiff,  yet  the  said  Daniel  Dame  hath 
not  delivered  up  the  said  house  and  barn  to  the  plaintiff,  but 
wholly  refuses  so  to  do,  and  still  unlawfully  detains  the  same." 

To  this  declaration  the  defendant  filed  a  general  demurrer,  and 
the  plaintiff  joined  in  demurrer ;  and  the  question  of  law  was 
reserved. 

L.  Bell,  for  the  plaintiff. 


58  CASES    ox   COMMOX-LAW   PLEADIXG. 

Sanborn,  for  tlie  defendant. 

Sargent,  J.  The  only  question  here  raised  is  whether  in  this 
State  an  action  of  detinue  can  be  maintained.  It  is  claimed  by  the 
defendant  that  this  form  of  action  was  never  introduced  into  this 
State,  or  if  it  ever  has  been  used  or  authorized  here,  that  it  has 
from  recent  entire  disuse  become  obsolete  so  that  it  cannot  now  be 
maintained. 

This  action  was  early  held  to  be  an  appropriate  remedy  in  a  cer- 
tain class  of  cases.  It  would  seem  that  the  original  distinction 
between  replevin  and  detinue  was  very  similar  to  that  between 
trespass  and  trover.  .  Trespass  de  bonis  asportatis  was  brought, 
not  to  recover  the  identical  thing  taken,  but  damages  for  the 
illegal  taking  and  loss  of  the  same,  when  such  taking  was  un- 
just and  unlawful,  while  trover  was  brought  for  the  unjust  deten- 
tion and  conversion  of  property  where  the  original  taking  was  lawful 
and  proper. 

So  replevin  was  originally  brought  to  recover  the  possession  of  a 
chattel  in  specie  when  the  original  taking  was  wrongful,  and  deti- 
nue to  recover  the  article  in  specie  when  the  original  taking  was 
lawful.  3  Black.  Com.  144-152.  Hence  we  find  that  the  forms  of 
the  declaration  in  trover  and  detinue  are  similar,  it  being  alleged 
in  both  that  the  property  came  to  the  hands  and  possession  of  the 
defendant  by  finding.  To  be  sure  Blackstone  says  that  replevin 
can  be  maintained  only  in  one  instance  of  an  unlawful  taking,  to 
wit,  that  of  an  unlawful  distress.  3  Black.  Com.  145.  However 
this  may  have  been  in  early  times,  when  personal  property  was  of 
but  small  consequence,  and  when  legal  remedies  were  mainly  if  not 
solely  sought  to  acquire  possession  of  real  estate,  or  to  enforce 
some  right  connected  therewith,  or  to  collect  the  rents  chargeable 
thereon,  yet  in  modern  times  it  is  held  that  the  law  is  otherwise, 
and  numerous  authorities  of  the  greatest  weight  lay  it  down  that 
this  action  lies  in  all  cases  of  illegal  taking. 

Chitty  says,  by  replevin  the  owner  of  goods  unjustly  taken  and 
detained  from  him  may  recover  possession  thereof.  It  is  prin- 
cipally used  in  cases  of  distress,  but  it  seems  that  it  may  be  brought 
in  any  where  the  owner  has  goods  taken  from  him  by  another. 
1  Chit.  PI.  162.  And  again,  "It  has  been  said  that  replevin 
lies  only  in  one  instance  of  an  unlawful  taking:  namely,  that  of 
an  unlawful  distress  of  cattle,  damage  feasant,  or  of  chattels  for 
rent  in  arrears  ;  but  as  before  observed,  it  appears  that  this  action 
is  not  thus  limited,  and  if  goods  be  taken  illegally,  though  not  as 
a  distress,  replevin  may  be  supported."  1  Chit.  PI.  164,  and  au- 
thorities cited.    2  Saund.  PI.  &  Ev.  760  ;  2  Wheat.  Selw.  N.  P.  1194. 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMIXSTF.R    II.  59 

Eeplevin  was  generally  a  coextensive  remedy  with  trespass  de  honis 
asportatls.  Pangburn  v.  Patridge,  7  Johns.  148,  and  authorities 
cited.     Thompson  v.  Button,  14  Johns.  87. 

There  is  one  exception  stated  by  Blackstone  (Vol.  Ill,  151), 
where  he  says,  "  If  I  distrain  another's  cattle  damage  feasant,  and 
before  they  are  impounded  he  tenders  me  sufficient  amends,  now, 
though  the  original  taking  was  lawful,  my  subsequent  detain- 
ment of  them,  after  tender  of  amends,  is  wrongful,  and  he  shall 
have  an  action  of  replevin  against  me  to  recover  them,"  But  that 
this  is  an  exception  to  the  general  rule  would  seem  evident  from 
the  manner  and  position  in  which  it  is  stated.  On  page  145,  an 
unlawful  taking  is  stated  as  the  first  injury  to  the  right  of  personal 
property  or  possession,  for  which  the  remedy  is  by  an  action  of  re- 
plevin. On  page  151,  he  speaks  of  the  second  injury,  which  is  an 
unjust  detainer  of  another's  goods  when  the  original  taking  was 
lawful,  for  which  the  remedy  in  all  cases  stated,  with  the  single 
exception  above  mentioned,  is  either  detinue  or  trover.  Now  the 
learned  commentator  cites  as  his  authority  for  the  exception  above 
named,  Fitzherbert's  Nat.  Brev.  69,  where  the  doctrine  is  stated 
thus  :  "  If  a  man  take  cattle  for  damage  feasant,  and  the  other 
tenders  him  amends  and  he  refuseth  it,  etc.,  now  if  he  sueth  a  re- 
plevin for  the  cattle,  he  shall  recover  damages  only  for  the  detaining 
of  them,  and  not  for  the  taking  of  them,  for  that  the  same  was  law- 
ful, therefore  no  return  shall  lie."  Baron  Gilbert,  in  his  treatise  on 
distresses  and  replevin,  says  this  is  the  only  instance  in  which  re- 
plevin lies  where  the  original  taking  was  not  tortious.  Hammond 
(in  his  Nisi  Prius,  334)  says  the  same,  and  assigns  the  reason, 
namely,  "  that  replevin  is  the  proper  action  to  try  all  questions 
arising  out  of  a  distress."  Here  is  the  cause  why  this  single  ex- 
ception to  the  general  rule  was  made,  because  this  was  the  remedy 
so  universally  applied  in  all  cases  of  distress,  and  so  seldom  in 
any  other  case,  that  Blackstone  (erroneously)  lays  it  down  as  ap- 
plicable only  there ;  it  was  held,  therefore,  as  a  matter  of  conven- 
ience in  practice,  that  it  should  be  extended  to  cover  all  cases  of 
distress,  even  though  in  a  single  instance  it  should  thus  be  carried 
beyond  its  original  and  appropriate  limits. 

With  this  single  exception  the  common  law  rule  is  believed  to  be 
uniform  tliat  replevin  does  not  lie  unless  the  original  taking  was 
unlawful  in  fact,  or  made  so  in  law  by  relation,  under  such  circum- 
stances as  would  have  made  the  taking  a  trespass  ah  initio.  [Our 
statute  makes  other  exceptions.  Kimball  v.  Adams,  3  N.  H.  182.] 
To  sustain  these  views,  see,  in  addition,  Com.  Dig.  &  Iieplevin,  A ; 
Buller's  N.  P.  52 ;  3  Wooddeson's  Lectures,  219;  2  Eolle's  Abr. 


60  CASES    ON    COMMON-LAW    PLEADING. 

441 ;  Lord  Eedesdale  in  Ex  parte  Mason,  1  Sch.  &  Lef,  320,  note ; 
and  also  in  Ex  parte  Chamberlain,  1  Sch.  &  Lef.  322  ;  and  in  Shan- 
non V.  Shannon,  1  Sch.  &  Lef.  324;  7  Johns.  140;  Story's  PI.  422, 
note  ;  Osgood  v.  Green,  30  N.  H.  210 ;  Gardner  v.  Campbell,  15 
Johns.  401. 

But  we  find  in  different  States  that  these  actions  have  been  gen- 
erally regulated  by  statute  and  made  to  apply  often  to  very  differ- 
ent uses  and  purposes  from  those  for  which  they  were  originally 
designed.  To  be  sure  we  find  in  all  the  States,  perhaps,  the  actions 
of  trespass  and  trover  retained,  trover  being  generally  extended  in 
practice,  so  as  to  cover  all  cases  of  wrongful  detention  and  con- 
version, without  regard  to  the  fact  as  to  whetlier  the  original  tak- 
ing were  legal  or  illegal ;  but  we  find  that  the  actions  of  replevin  and 
detinue  have  met  with  very  unequal  favor  in  tlie  different  States. 

In  Massachusetts,  it  has  been  held  that  replevin  may  be  main- 
tained in  all  cases  of  wrongful  detention  of  the  plaintiff's  goods, 
although  the  original  taking  may  have  been  justifiable.  Badger  v. 
Phinney,  15  Mass.  359;  Baker  v.  Tales,  16  Mass.  147  ;  Marston  v. 
Baldwin,  17  Mass.  606  ;  and  in  that  State,  too,  it  is  held  that 
detinue  is  obsolete.  Baker  v.  Tales,  16  Mass.  154;  Colby's  Prac, 
and  Howe's  Prac,  Detinue.  But  these  decisions  in  Massachusetts, 
so  far  as  they  claim  to  rest  upon  the  common  law,  have  been  so  often 
and  so  seriously  questioned,  and  are  opposed  by  such  an  overwhelm- 
ing weight  of  authority,  both  English  and  American,  that  they  may 
well  be  considered  as  having  very  little  weight  upon  the  question. 
See  argument  of  Webster  and  Metcalf,  in  Baker  v.  Tales  (page  148), 
and  authorities  cited ;  and,  also,  the  numerous  notes  by  the  editor, 
and  authorities  cited  upon  this  case  of  Baker  v.  Tales,  in  the  recent 
editions  of  Massachusetts  Eeports  ;  and  particularly,  note  23,  upon 
the  action  of  detinue.  See  also  Wheat.  Selw.  N.  P.  1194,  and  note 
and  authorities. 

But  it  is  said  that  these  decisions  in  Massachusetts  are  author- 
ized by  their  statutes ;  and  if  that  were  so,  they  would  stand  well 
enough,  whether  they  accord  with  the  common  law  or  not.  Mellen, 
C.  J.,  in  Seaver  v.  Dingley,  4  Greenl.  315,  in  speaking  of  these  Mas- 
sachusetts cases,  says,  that  the  court,  after  mature  consideration,  de- 
cided "  that  whatever  might  be  the  strict  principles  of  the  common 
law,  the  statute  of  1789  had  so  altered  the  common  law,  that  an 
action  of  replevin  may  be  maintained  in  case  of  an  unlawful  de- 
tention, though  the  taking  was  not  tortious  and  unlawful."  But 
even  this  position  is  disputed,  and  it  is  claimed,  with  apparent  rea- 
son, that  these  decisions  cannot  be  sustained  either  upon  the  prin- 
ciples of  the  common  law  or  upon  the  statute  of  that  State.     See 


ACTIONS   BEFORE   THE   STATUTE    OF   WESTMINSIER   II.  61 

notes  36  and  37  to  Baker  v.  Fales,  and  authorities  cited,  where  it  is 
said,  that  neither  the  form  of  the  writ,  as  prescribed  in  that  State, 
nor  their  statute  "  give  any  countenance  to  the  notion  that  replevin 
may  be  maintained  for  an  unlawful  detention  ;  but,  on  the  contrary, 
extend  only  to  cases  of  supposed  unlawful  taking."  And,  also, 
"that  it  is  quite  clear  that  at  the  common  law  no  action  of  replevin 
could  be  maintained  in  this  case." 

Judge  Story  also  seems  to  doubt  whether  these  decisions  in  Mas- 
sachusetts can  stand  even  upon  the  statute  of  that  State,  and  he 
does  not  hesitate  to  pronounce  their  doctrines  as  innovations  upon  the 
common  law  (Story's  PI.  442,  note),  where,  in  speaking  of  the  doctrine 
that  replevin  may  be  maintained  for  goods  unlawfully  detained, 
although  there  may  have  been  no  tortious  taking,  he  says,  "  this 
innovation  on  the  common  law,  whether  attributable  to  the  statute 
or  to  the  construction  given  to  it,  is  to  be  regretted.  The  gist  of 
the  action  is  altered.  It  is  no  longer  an  unlawful  taking,  but  an 
unlawful  detention.  The  general  issue,  non  cejnt,  'though  it  can 
hardly  be  overruled  as  a  good  plea  in  replevin,  has  ceased  to  be  a 
logical  defence ;  indeed,  is  no  more  to  the  purpose  than  nil  debet  in 
assumpsit.  It  unsettles  former  decisions,  unless  some  exceptions 
are  set  up  without  any  other  reason  than  a  desire  to  avoid  over- 
ruling former  cases.  Thus,  it  was  formerly  held  that  replevin 
would  not  lie  on  a  bailment  by  the  plaintiff ;  but  if  replevin  will 
lie  in  all  cases  of  unlawful  detention,  then  it  may  be  maintained  in 
many  cases  of  bailment ;  and,  lastly,  it  has  destroyed  the  analogy 
between  the  actions  of  trespass  and  replevin,  where  it  existed 
before." 

In  Pennsylvania,  it  was  decided  at  an  early  date  that  replevin 
would  lie  wherever  one  man  claimed  goods  in  the  possession  of 
another,  no  matter  how  the  possession  was  acquired.  But  in  that 
State  the  action  of  replevin  is  authorized  and  regulated  only  by 
statute.  Wallace  v.  Lawrence,  1  Dall.  J  57.  And  the  law  continues 
the  same.  Staughton  v.  Eappalo,  3  S.  and  Pt.  5()2  ;  Keite  v.  Boyd, 
16  S.  and  R.  300.  There  could  of  course  be  little  necessity  for  the 
action  of  detinue  in  that  case. 

In  Virginia,  it  has  been  held  that  at  common  law  replevin  lay  in 
all  cases  where  goods  were  unlawfully  taken.  And  this  was  the 
law  in  that  State  till  1823,  when  an  act  of  the  legislature  confined 
the  writ  to  the  case  of  distress  for  rent.  Vaiden  v.  Bell,  3  Randolph, 
448.  In  that  State  we  find  the  action  of  detinue  in  very  common 
use,  as  it  is  believed  to  be  in  all  the  Southern  and  some  of  the 
Western  States. 

In  South  Carolina,  while  detinue  was  in  common  use,  it  is  said 


62  CASES   ON   COMMON-LAW   PLEADING. 

in  Byrd  v.  O'Harliu,  1  Rep.  Con.  Ct.  401,  that  it  is  not  decided  in 
that  State  whether  replevin  will  lie  in  any  other  case  than  that  of 
a  distress  for  rent. 

So  in  Connecticut,  while  it  is  admitted  that  hy  the  English  au- 
thorities, as  well  as  those  of  some  of  the  contiguous  States,  replevin 
lies  for  anv  tortious  or  unlawful  taking  of  goods  and  chattels,  yet  it 
is  held  that,  under  their  statute,  it  lies  only  in  cases  of  attachment 
and  distress.     Watson  v.  Watson,  9  Conn.  140  ;  S.  C.  10  Conn.  75. 

In  New  York,  previous  to  their  Eevised  Statutes,  they  adhered 
strictly  to  the  common  law  distinction  between  replevin  and 
detinue,  and  both  actions  were  used.  See  7  Johns.  140  ;  10  Johns. 
373 ;  14  Jolms.  87,  and  15  Johns.  402,  before  cited,  which  were 
cases  of  replevin ;  and  Todd  v.  Crookshanks,  3  Johns.  432,  which 
was  detinue.  But  by  their  Eevised  Statutes  (Vol.  II,  533),  the 
action  of  detinue  was  abolished,  and  the  action  of  replevin  was 
made,  by  express  provision  of  law,  to  cover  the  same  ground,  or 
nearly  so,  that  detinue  had  before  covered. 

But  in  North  Carolina,  on  the  other  hand,  it  is  held  that  detinue 
lies  in  every  case  in  which  the  property  is  wrongfully  detained, 
without  regard  to  the  manner  in  which  the  defendant  acquired 
possession.     Johnson  v.  Preston,  Cameron  and  Norwood,  464. 

It  is  said  in  3  Black,  Com.  151,  that  there  is  one  disadvantage 
which  attends  this  action  (detinue) :  namely,  that  the  defendant 
is  herein  permitted  to  wage  his  law,  that  is,  to  exculpate  himself  by 
oath,  and  thereby  defeat  the  plaintiff  in  his  remedy,  and  that  for 
this  reason  the  action  itself  is  much  disused,  and  has  given  placie  to 
the  action  of  trover.  See,  also,  Bac.  Abr.  Detinue.  But  the  3  and 
4  Will.  IV,  c.  42,  s.  13,  abolished  the  wage  of  law  in  all  cases  ; 
since  which,  this  action  has  been  much  in  use  in  England,  and  is 
said  to  be  a  very  advantageous  remedy,  especially  where  it  is  mate- 
rial to  embrace  in  the  same  action  with  a  count  in  detinue,  another 
count  in  debt,  for  a  money  demand  as  due  upon  a  contract.  1  Chit. 
PI.  121  and  125. 

It  does  not  seem  to  be  clearly  settled  upon  authority,  whether  the 
action  of  detinue  should  be  confined  to  those  cases  where  the  pos- 
session was  at  first  rightful,  and  only  the  detention  wrongful,  or 
whether  that  remedy,  like  trover,  should  be  extended  to  all  cases 
where  the  detention  is  wrongful,  without  regard  to  the  quality  of 
the  original  possession.  The  early  authorities  all  favor  the  former 
view.  Lord  Coke  says,  "  that  detinue  lyeth  where  any  man  comes 
to  goods  either  by  delivery  or  finding."  Coke  Litt.  286,  b.  Black- 
stone  lays  down  this  rule,  that  in  order  to  maintain  detinue  the 
first  point  to  be  proved  is,  that  the  defendant  came  lawfully  into 


ACTIONS   BEFORE   THE    STATUTE    OF   AVESTMIXSTER   II.  63 

possession  of  the  goods,  as  either  by  delivery  to  him  or  by  finding 
them.     3  Bl.  Com.  151 :  Bac.  Abr.,  Det. ;  Wheat.  Selw.  K  P.  665. 

But  it  is  said  by  Chitty  (1  Chit,  PI.  123)  that  it  is  a  common  doc- 
trine in  the  books,  that  this  action  cannot  be  supported  if  the  de- 
fendant took  the  goods  tortiously  ;  but  he  pronounces  the  reasoning 
upon  which  that  opinion  is  founded  as  fallacious,  and  holds  that  it 
may  be  maintained  in  any  case  when  the  detention  was  wrongful, 
without  regard  to  the  manner  in  which  the  defendant  acquired 
possession.  And  while  there  would  seem  to  be  no  good  reason  for 
enlarging  the  remedy  by  replevin,  any  more  than  there  is  that  of 
trespass  de  bonis ;  yet  it  may  well  admit  of  a  quccre  whether,  as  a 
matter  of  convenience  in  practice,  and  not  inconsistently  with  prin- 
ciple, the  action  of  detinue  should  not  be  so  far  enlarged  beyond 
its  original  limits,  as  to  keep  pace  with  its  kindred  action  of  trover. 

It  is  alleged  that  detinue  has  never  been  used  or  authorized  in 
this  State,  and  that  replevin,  trespass,  and  trover  afford  ample  rem- 
edies for  all  cases  and  classes  of  injuries.  But  trespass  and  trover 
are  no  substitute  for  detinue,  for  they  only  give  damages  for  the 
goods  taken  or  converted,  without  giving  the  party  any  chance  to 
recover  the  chattel  in  sjjecie.  In  regard  to  replevin,  we  understand 
that  the  common  law  is  in  force  here,  and  that  this  action  only  lies 
in  case  of  a  wrongful  taking  in  fact,  or  by  intendment  of  law  with 
the  single  common  law  exception  of  cases  of  cattle  taken  damage 
feasant,  when  amends  are  tendered  before  impounding,  and  other 
exceptions  made  by  our  statute  in  case  of  animals  impounded,  when 
it  is  held  that  it  lies  for  a  wrongful  detention  as  well  as  a  wrong- 
ful taking ;  Kimball  v.  Adams,  3  N.  H.,  ante  ;  but  it  must  be  against 
the  person  impounding,  and  cannot  be  against  the  pound-keeper 
while  the  creatures  are  in  his  legal  custody;  BiUs  v.  Kinson,  21 
N.  H.  448,  where  it  is  said  that  our  statute  has  added  to  the 
causes  for  which  this  action  may  be  instituted  at  common  law,  not 
only  in  the  above  case  of  animals  impounded,  but  in  case  of  goods 
attached  on  mesne  process,  when  claimed  by  a  third  person,  and  in 
case  of  goods  exempt  from  attachment.  Rev.  Stat.,  c.  204,  ss,  1,  2, 
and  3 ;  Comp.  Laws,  520. 

In  accordance  with  these  views  is  the  form  of  the  writ  prescribed 
by  law  in  the  action  of  replevin  (Rev.  Stat.,  c.  182,  s.  14;  Comp. 
Laws,  464),  commanding  the  sheriff  to  replevy  the  goods  belonging 
to  A.  P.,  of,  etc.,  "wrongfully  taken  and  detained,"  as  it  is  said,  etc. 
It  would  seem  that  this  form  embraces  the  common  law,  as  nearly 
as  may  be,  as  stated  in  the  English  cases,  replevin  there  being  held 
to  be  the  proper  remedy  in  cases  where  property  has  been  wrong- 
fully taken  and  detained,  whether  as  a  distress  or  in  any  other  way. 


64  CASES   ON    COMMON-LAW   PLEADING. 

Eeplevin  then  does  not  encroach  upon  the  common  law  ground 
of  detinue,  but  leaves  all  that  ground  for  the  application  of  that 
remedy.  It  is  only  when  replevin  is  carried  beyond  the  common 
law  limit,  as  in  Massachusetts,  by  the  court,  and  as  it  is  in  some 
States,  as  in  New  York,  by  statute,  that  it  can  be  said  at  all  to 
supersede  the  necessity  of  detinue  as  a  remedy  where  the  original 
taking  was  lawful,  and  it  is  desired  to  recover  the  thing  detained, 
in  specie. 

Nor  do  we  find  our  statutes  silent  concerning  the  action  of  detinue. 
In  the  statute  of  limitations  of  1791,  detinue  is  twice  mentioned 
and  enumerated  with  trespass,  trover,  -and  replevin,  and  the  time  of 
limitation  is  fixed  for  each.  N.  H.  Laws  of  1815, 164  and  165.  In 
the  later  statute  of  limitations,  passed  in  1825,  we  find  similar  pro- 
visions, and  the  same  enumeration  of  actions,  in  which  detinue  is 
twice  repeated,  as  before.  N.  H.  Laws  of  1830,  76.  And  in  the 
Revised  Statutes,  after  specifying  that  certain  actions,  such  as  for 
words,  etc.,  shall  be  brought  within  two  years,  it  is  provided,  that 
all  other  personal  actions  shall  be  brought  in  six  years.  Rev.  Stat., 
c.  181,  ss.  3  and  4.  Although  detinue  is  not  here  enumerated 
specifically,  yet  the  same  is  true  of  trover,  trespass,  debt,  and  all 
other  actions  having  the  same  term  of  limitation. 

It  would  seem  that  detinue  was  a  remedy  as  fully  recognized  by 
our  laws,  and  provided  for  as  specifically  as  any  of  the  other  forms  of 
personal  actions.  Nor  is  its  place  superseded  by  any  other  form  of 
action.  There  are  also  good  and  sufficient  reasons  why  it  should  be 
used,  even  if  it  were  a  concurrent  remedy  with  replevin.  In  the 
latter,  the  plaintiff  resumes  the  property  in  the  first  instance,  and 
if  he  does  not  prevail,  he  must  pay  the  defendant  the  value  of  the 
property,  as  by  our  practice  there  is  no  judgment  for  a  return. 
Bell  V.  Bartlett,  7  N.  H.  188.  But  in  detinue,  though  the  claim  be 
to  recover  the  specific  chattel,  yet  it  is  not  taken  from  the  hands  of 
the  defendant  till  the  right  is  determined,  and  the  plaintiff"  takes 
his  property  on  his  execution.     No  bonds  are  required. 

Detinue  may  also  be  joined  with  debt  in  the  same  declaration, 
which,  in  a  large  class  of  cases,  is  a  decided  advantage.  It  may 
also  be  brought  for  several  articles,  part  of  which  are  in  existence, 
andean  be  recovered,  and  a  part  of  which  may  have  been  converted, 
conveyed  away,  or  destroyed ;  as  the  judgment  in  detinue  is  in  the 
alternative,  first,  that  the  plaintiff'  do  recover  the  goods  in  question 
specifically;  or,  secondly,  if  the  plaintiff  cannot  have  the  goods,  that 
he  recover  the  value  thereof,  and  his  damages  for  the  detention. 

The  jury  must  therefore  find  the  value  not  only  of  all  the  goods 
in  the  aggregate,  but  of  each  article  separately,  so  that  the  plaintiff 


ACTIONS   BEFORE   THE   STATUTE   OF   WESTMINSTER   II.  65 

may  have  all  that  can  be  found  of  his  property  in  specie,  and  for  the 
balance,  whatever  it  may  prove  to  be,  he  may  recover  his  damages, 
and  this  all  in   one  suit  and  by  a  single  judgment  and  execution. 

1  Wheat.  Selw.  N.  P.  667  ;  Saund.  PL  and  Ev.,  ante. 

The  difference  in  the  course  of  proceedings,  in  the  two  cases 
(replevin  and  detinue),  results  naturally  from  the  different  injuries 
for  the  redress  of  which  these  remedies  were  invented.  Where  the 
taking  was  illegal  and  wrongful,  the  redress  was  by  replevin,  in 
which  the  possession  of  the  property  was  immediately  returned  to 
the  party  from  whom  it  had  been  thus  wrongfully  taken  ;  and  the 
parties  were  then  left  to  determine  their  several  rights.  But  where 
the  possession  was  legally  and  rightfully  obtained,  as  by  a  bailment, 
or  a  finding,  but  the  further  detention  was  claimed  to  be  wrongful, 
the  plaintiff  was  not  allowed  to  take  the  property  in  any  summary 
manner  from  the  hands  of  the  defendant,  to  whom,  perhaps,  he  had 
himself  committed  it;  but  he  must  first  try  his  title  and  estab- 
lish his  right,  and  if  he  proved  the  detention  to  be  wrongful,  he  then 
recovered  his  goods. 

We  think,  then,  that  there  are  sufficient  grounds,  both  upon  the 
statute  and  upon  authority  and  reason,  as  well  as  convenience,  for 
holding  that  detinue  in  this  State  can  be  maintained. 

JUDGMENT. 
Adapted  from  Pollock  and  Maitland,  History  of  English  Law. 

"  Now  at  first  sight  the  writ  of  detinue  seems  open  to  every  one 
who  for  any  cause  whatever  can  claim  from  another  the  possession 
of  a  chattel.  —  X.,  the  defendant,  is  to  give  up  a  thing  which  he 
wrongfully  detains  {iniuste  detinet)  from  A.,  the  plaintiff,  or  explain 
why  he  has  not  done  so." 

A.  V.  X.  Detinue  for  an  ox,  which  X.  obstinately  refuses  to  give 
up.  In  his  count  A.,  being  bound  to  put  some  value  upon  the 
creature,  says  it  is  worth  five  shillings.  Judgment  for  A.,  that  he 
recover  the  ox,  or  five  shillings,  the  value  assessed  by  the  jury. 
"  If  X.  chooses  to  pay  the  money  rather  than  deliver  up  the  ox,  he 
will,  by  so  doing,  satisfy  the  judgment.  If  he  is  still  obstinate,  then 
the  sheriff  will  be  bidden  to  sell  enough  of  his  chattels  to  make  the 
sum  awarded  by  the  jurors,  and  will  hand  it  over  to  the  plaintiff." 

2  Pollock  and  Maitland,  173. 


66 


CASES    ON    COMMON-LAW   PLEADING. 


Section  III. 


REPLEVIN. 

EEPLEVIN. 


In  the  anomalous  case 
below  noted. 


A  taking. 

X.,  a  tenant  of  A.,  is  stubborn,  and  refuses  to  pay  his 
rent.     X.  owns  cattle,  and  to  his  cattle  he  looks  for  his 
daily  bread.     The  law  gives  A.,  his  landlord,  a  remedy.    A. 
may  distrain  X.'s  cattle.     The  adequacy  of  the  remedy  is 
plain,  for  distraint  amounts  to  dispossession.     Z.,  a  ten- 
ant, has  paid  his  rent,  but  A.,  his  landlord,   is  unscrupu-^ 
lous.     Z.  also  owns  cattle,  and  to  his  cattle  he  looks  for  his 
daily  bread.     A.,  wishing  to  extort  money  from  Z.,  wrong- 
fully distrains  Z.'s  cattle,  and  thus  imperils  Z.'s  existence. 
A.  is  strong  and  Z.  is  weak.     The  law  must  be  just.     It 
must  give  Z.  a  remedy,  and  an  adequate  remedy.     Money 
damages  will  not  suffice.     Z.  must  be  repossessed  of  his 
cattle.     He  will  have  a  writ  of  replevin.     The  early  law 
records  at  least  one  important  case,  however,  where  replevin 
will  lie  for  other  than  a  wrongful  taking.     Y.  finds  T.'s  ox 
in  Y.'s  field.     Y.  has  a  right  to  distrain  and  impound  this 
damage-doing  ox.     Y.  starts  to  lead  T.'s  ox  to  the  pound, 
wdien  T.  comes  and  tenders  the  amount  of  the  damage,  and 


ACTIONS    BEFORE    THE   STATUTE    OF    WESTMINSTER   II.  67 

says,  "  Give  me  my  ox."  Y.  says,  "  You  shall  not  have 
your  ox."  T.  may  maintain  replevin,  though  the  taking  by 
Y.  was  rightful.-^  In  replevin,  therefore,  we  can  say,  as 
a  general  proposition,  that  the  taking  must  be  wrongful, 
and  in  detinue,  that  by  the  early  law  it  must,  and  by  the 
later  law  it  may,  be  rightful.  Thus  one  distinction  between, 
replevin  and  detinue  is  already  drawn.  The  others  w^ill  as 
plainly  appear. 

HISTOEY  OF   EEPLEVIN.2 

"  To  replevy  {replcgiare,  that  is,  to  take  back  the  pledge)  is,  when 
a  person  distrained  ^  upon  applies  to  the  sheriff  or  his  officers,  and 
has  the  distress  returned  into  his  own  possession,  upon  giving  good 
security  to  try  the  right  of  taking  it  in  a  suit  at  law,  and,  if  that 
be  determined  against  him,  to  return  the  cattle  or  goods  once  more 
into  the  hands  of  the  distrainor.  This  is  called  a  repleyin."  3 
Blackstone's  Commentaries,  13.* 

"A  distress  is  the  taking  of  a  personal  chattel,  without  legal 
process,  from  the  possession  of  a  wrong  doer,  into  the  hands  of  the 
party  grieved ;  as  a  pledge,  for  the  redress  of  an  injury,  the  per- 
formance of  a  duty,  or  the  satisfaction  of  a  demand."  Bradby, 
The  Law  of  Distresses,  1. 

"  Goods  may  be  replevied  two  manner  of  wayes,  viz.,  by  writ,  and 
that  is  by  the  common  law,  or  by  the  pleint,  and  that  is  by  the 
statutes  for  the  more  speedy  having  againe  of  the  cattell  and 
goods.  A  replegiare  lyeth,  as  Littleton  here  teacheth  us,  where 
goods  are  distreined  and  impounded,  the  owner  of  the  goods  may 
haye  a  writ  de  replegiari  facias,  whereby  the  sherife  is  commanded, 
taking  sureties  in  that  behalfe,  to  redeliver  the  goods  distreined  to 
the  owner,  or  upon  complaint  made  to  the   sherife  he   ought  to 

1  The  action,  too,  always  lay  for  a  distress  legal  in  the  hegiiniing,  but  l)econiing 
illegal  because  of  a  detention  after  gage  and  pledge.     1  Brad.  1.56. 

■^  Martin.  93.  "The  autiiorities  all  agree  that  replevin  originated  iu  common  law 
as  a  remedy  against  the  wrongful  exercise  of  the  right  of  distress  for  rent." 

3  Martin,  93.  "'i'he  use  of  replevin  in  other  takings  was  so  rare  for  several  cen- 
turies that  we  find  Blackstone  asserting  tliat  it  lies  only  against  a  distrainor.  But 
this  restriction  of  the  remedy  never  existed,  even  iu  theory.  3  Bl.  Com.  145.  Ct. 
Scliannon  i:  Schannon,  1  Sch.  &  Lef.  327 ;  George  r.  Chambers,  II  M.  &  W.  149; 
Allen  V.  Sharp,  2  Exch.  3.52  ;  Comyn,  Dig.  Repl.  A. 

"  Blackstone's  statement  was  challenged  as  erroneous,  and  tiie  action  held  to  lie 
in  all  wrongful  takings,  except  when  done  under  process  against  the  plaintiff." 
Comyn,  Dig.  Kepi.  D. 

*  See  also  Co.  Litt.  145,  b  ;  2  Roscoe  Ac.  621  ;  3  Bl.  Com.  145  ;  as  to  the  origin  of 
Replevin. 


GS  CASES    ON    COMMON-LAW    PLEADING. 

make  a  replevy  in  the  [county],  riepleginre  is  compounded  of  re 
and  plegiarc,  as  much  as  to  say,  as  to  redeliver  upon  pledges  or 
sureties."     Coke  on  Littleton,  145  h. 


VEE  DE  NAM  (or  de  vetito  namio),  THE   CONTEMPORAEY 
OF   EARLY   REPLEVIN. 

"  A  landlord  at  common  law  had  the  right  without  writ  or  precept 
to  take  the  chattels  of  his  tenant  and  retain  them  in  his  possession 
as  security  for  rents  due  him.  A  wrongful  exercise  of  this  right 
was  regarded  as  a  serious  offence  against  the  Crown,  which  could 
not  be  redressed  by  the  inferior  courts  without  special  authority 
emanating  from  the  sovereign."     Martin,  Civil  Procedure,  94 

Reported  30  and  31  Edward  I.  222.     Axxo  1302. 

A  tradition  of  the  ancient  lawyers  fixed  the  origin  of  "  de  vetito  namio " 
in  the  reign  of  King  John.     Sed  qucere.      Vide  post. 

The  king  brought  his  quo  ivarranto  against  the  burgesses  of  Laun- 
caston,  and  demanded  by  what  warrant  they  claimed  to  have  a 
burrough,  and  several  other  franchises,  and  also  to  hold  pleas  "  de 
vetito  namio."  Hunt.  We  claim  these  franchises  because  we  and 
our  ancestors,  and  all  the  burgesses  of  the  said  town,  have,  ever 
since  the  Conquest,  had  and  used  these  kinds  of  franchises.  Ber- 
rewick.  And  what  say  you  to  the  pleas  "  de  vetito  namio !  "  Hunt. 
We  give  the  same  answer.  Berrewick.  You  claim  to  hold  pleas 
"  de  vetito  namio  "  from  a  time  of  which  there  is  no  memory  ;  and 
the  plea  "de  vetito  namio  "  was  first  invented  in  the  time  of  King 
John,  and  so  within  time  of  memory.  Hunt.  Although  that  name 
was  first  invented  in  the  reign  of  King  John,  yet  we,  before  time  of 
memory,  held  pleas  of  tortious  takings  of  beasts  and  chattels  by 
attachment  and  distress.  Berrewick.  Therefore  you  ought  to  have 
claimed  in  that  form ;  but  now  you  have  claimed  by  the  phrase 
"  de  vetito  namio."  Hunt.  We  hold  them  to  be  one  and  the  same 
thing.  Brumpton.  By  God,  they  are  not ;  for  the  plea  "  de  vetito 
namio ""  is  properly  had  before  the  sheriff,  and  it  is  a  matter  against 
the  king's  crown,  and  affected  the  king's  peace  in  a  high  degree ; 
tlierefore,  tell  us  how  you  claim  to  hold  these  pleas.  Hunt.  If  the 
defendant  fall  to  do  his  law,  he  will  be  amerced,  and  the  plaintiff 
will  recover  his  damages  ;  and  if  he  do  his  law,  the  plaintiff  will  be 
amerced  for  his  false  plamt.  Mutford.  He  claims  to  have  held  pleas 
"  de  vetito  namio  "  before  the  time  of  memory ;  and  as  this  kind  of 


ACTIONS   BEFORE   THE    STATUTE    OF   WESTMINSTER   II.  69 

plea  had  its  origin  in  the  time  of  King  John,  and  so  within  time  of 
memory,  we  pray  judgment. 

De  Vetito    N^amio    Defined. 

"  The  action  for  vee  de  nam  {de  vetito  naniii)  [was  one]  brought 
against  a  distrainor,  who,  though  he  has  now  given  back  the  beasts,^ 
has  been  guilty  of  detaining  them  against  gage  and  pledge."  2 
Pollock  and  Maitland,  524  (2d  edition). 

"  If  the  distrainor  will  not  deliver  the  beasts  after  gage  and 
pledge  have  been  offered,  then  it  is  the  sheriff's  duty  to  deliver 
them.  For  this  purpose  he  may  raise  the  hue,  call  out  the  whole 
power  of  the  county  {posse  comitatus)  and  use  all  necessary  force. 
'  When  gage  and  pledge  fail,  peace  fails,'  says  Bracton ;  in  other 
words,  the  distraining  lord  is  beginning  a  war  against  the  state  and 
must  be  crushed.  The  offence  that  he  commits  in  retaining  the 
beasts  after  gage  and  pledge  have  been  tendered,  is  known  as  veti- 
tiiin  namii,  or  vee  de  nam.  It  stands  next  door  to  robbery;  it  is  so 
royal  a  plea,  that  very  few  of  the  lords  or  franchises  have  power  to 
entertain  it.  It  is  an  attack  on  that  judiciary  system  of  which  the 
king  is  the  head.  Disputes  about  the  lawfulness  of  a  distress  were 
within  the  sheriffs  competence.  He  could  hear  them  without  be- 
ing ordered  to  do  so  by  royal  writ.  But  when  he  heard  them  he 
was  acting,  not  as  the  president  of  the  county  court,  but  as  a  royal 
justitiar."     2  Pollock  &  Maitland,  577  (2d  edition). 

Relationship  between  De  Vetito  Namio  and  Replevin. 

"  Before  the  end  of  the  thirteenth  century,  the  action  based  upon 
the  vee  de  nam  was  losing  some  of  its  terrors  :  either  party  could 
easily  procure  its  removal  from  the  county  court  to  the  king's  court. 
Under  the  name  of  replegiare  or  replevin,  an  action  was  being  de- 
veloped which  was  proving  itself  to  be  a  convenient  action  for  the 
settlement  of  disputes  between  landlord  and  tenant;  but  it  seems 
to  have  owed  its  vigour,  its  rapidity,  and  therefore  its  convenience, 
to  the  supposition  that  a  serious  offence  had  been  committed  against 
the  king."     2  Pollock  and  Maitland,  577  (2d  edition). 

1  Note  that  in  vee  de  nam  the  plalutiff  does  uot  seek  his  cattle  in  the  defendant's 
possession,  as  he  does  in  replevin. 


70  CASES    ON    COMMON-LAW    PLEADING. 

KEPLEVIN   IN   GLANVILL'S  TIME. 

i.  e.  in  the  Reign  of  Henry  II. 

ORIGINAL  WRIT  OF  EEPLEVIN.i 

[Glanvill  (Beames),  238,  c.  12.] 

"The  king  to  the  sheriff,  hetilth.  I  command  you,  that  justly  and 
without  delay,  you  cause  G.  to  have  his  beasts  by  gage  and  pledges,  of 
wliicli  he  complains  that  R.  has  taken  the'm,  and  unjustly  detains  lliem, 
for  the  customs  which  he  exacts  from  him,  and  which  he  does  not 
acknowledge  to  owe  him  ;  and  in  the  meantime,  cause  him  justly,  etc., 
least,  etc."  ^ 

"  In  the  former  part  of  this  inquiry,  into  judicial  proceedings,  v>e 
have  seen  that  when  land  was  seised  in  the  king's  hand  for  default 
or   contempt  of  the  tenant,  he  might  within  a  certain  time  replevy 
his  land,  upon  performing  what  was  required  of  him  by  the  court. 
The  power  of  distraining,  which  lords  exercised   over  their   ten- 
ants, rec[uired  a  similar  qualification,  either  that  the  tenant  should 
perform  what  was  due,  or  at  least  till  it  was  ascertained  by  judg- 
ment whether  anything  or  what  was  due,  he  should  replevy ;  that 
is,  have  a  return  of  his  goods  upon  pledges  given  as  a  security  to 
stand  to  the  award  of  justice  in  the  matter.     In  order  to  affect  this, 
several  writs  of  replcgiare  or  replevin  were  devised."      Reeves,  His- 
tory of  English  Law,  A^ol.  I,  p.  439. 

1  2  Pollock  ami  Maitland,  578.  "  The  replevin  writ  in  Glanvill,  XII,  15,  differs 
in  important  respects  from  that  in  Bracton,  f.  1.57,  and  Reg.  Brev.  Orig.  f.  81,"  Thus, 
"  The  king  to  the  viscount,  greeting  :  Because  A.  has  assured  us,  or  otherwise  because  B. 
has  assureil  you,  &c.  Put  under  bail  and  safe  pledges  R.  that  he  should  present  himself 
before  our  jnstices,  &c.,  at  Westminster,  on  such  a  day,  to  show  cause  why  he  has 
taken  the  beasts  of  A.  in  such  a  county,  where  the  said  B.  has  nor  lands  nor  tenements, 
altliongh  he  has  feuds, and  has  driven  them  from  such  county  aforesaid  as  far  as  your 
county  in  fraud,  beyond  the  power  of  so-and-so,  our  viscount,  and  there  detains  them  as 
he  savs,  against  our  peace."     Brae.  f.  157. 

2  i^or  a  full  description  of  how  proceedings  in  replevin  were  removed  from  the  sher- 
iff's court *to  the  superior  courts  hy  plaries  writs  of  replevin,  see  Martin,  s.  107.  If 
the  sheriff  failed  to  execute  the  original  writ,  an  alias,  not  returnalile  to  the  Superior 
Court,  was  sued  out.  The  next  step  was  to  sue  out  the  pluries  writ  already  mentioned, 
which  contained  the  clause  vel  cnumm  nobis  signif  res,  und  wa.-^  hence  returnable  i)n> 
cess.  It  became  usual  to  sue  out  the  alias  and  the  phiries  writs  at  the  same  time. 
Wilk.  RepL  14.3;  Fitzh.  N.  B.,  68,  69,  70;  Freeman  v.  Blewitt,  1  Salk.  410;  Morris, 
Kepleviu,  53;  Martin,  s.  107. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  71 


EEPLEVIN   IN   BEACTON'S   TIME. 

(i.  e.  In  the  reign  of  Henry  III.) 

THE   STATUTE   OF   MARLEBRIDGE.     [a.d.  1267.] 

Enacted  52  Henry  III. 

A  Statute  "providing  for  the  better  estate  of  his"  (the  king's) 
''reahn  of  England,  and  for  the  more  speedy  ministration  of  justice,  as 
belongeth  to  the  office  of  a  liing." 

Cap.    XXI. 

WHO    MAT    MAKE    REPLEVIN    OF    BEASTS    DISTRAINED. 

"It  is  provided  also,  That  if  the  beasts  of  an}'  man  be  taken,  and 
•wrongfully  withholden,  the  sheriff,  after  complaint  made  to  him  thereof, 
may  deliver  them  without  let  or  gainsaying  of  him  that  took  the  beasts, 
if  they  were  taken  out  of  liberties.  And  if  the  beasts  were  taken  within 
any  liberties,  and  the  bailiffs  of  the  libert}'  will  not  deliver  them,  then 
the  sheriff,  for  default  of  those  bailiffs,  shall  cause  them  to  be  de- 
livered." 

PLAINT.  1 

A.  B.  complains  against  C.  D.  in  a  plea  of  taking  and  unjustly  de- 
taining his  cattle  against  sureties  and  pledges,  etc. 

^  E.  F.2 
Pledges  to  prosecute,  >•    and 
)  G.  H. 

If  the  replevin  be  executed,  and  the  deliverance  made,  where  it 
is  by  plaint,  the  bailiff  at  the  time  he  makes  deliverance  ought 
also  to  attach  tlie  defendant  by  his  goods  depending  iu  the  county 
court,  to  make  him  appear  at  the  next  court  day;  for  in  this  action 
the  attachment  is  the  first  process,  because  the  replevin  complains 
of  a  tortious  taking,  which  is  in  nature  of  a  trespass.  Gilb.  L.  of 
Distresses,  80  ;  McKelvey,  48. 

^  "  To  take  away  all  the  delays  that  attended  the  replevin  by  writ,  the  sheriff 
by  tiiis  act  [the  Statute  of  Marlhridge]  may  upon  complaint  made,  command  his 
bailiff  either  by  word  or  precept  to  replevy  the  ])hiiiitiff's  beasts,  for  possibly  the 
sheriff  cannot  write  (which  was  frequently  the  case  in  those  days),  or  has  not  the 
materials  of  writing  with  him,  and  this  the  sheriff  may  do  out  of  bis  county  court; 
for  this  act  being  nuide  for  the  more  speedy  administration  of  justice,  hath  received 
the  most  favorable  construction.  .  .  .  But  then,  the  sheriff  luust  enter  the  plaint 
at  the  next  court,  that  it  may  appear  on  the  Eolls  of  the  Court."  Gilb.  L.  of 
Distresses,  69. 

2  Gilb.  L.  of  Distresses,  257. 


72  CASES   ON   COMMON-LAW   PLEADING. 

Procedcre  in  Replevin  upon  Plaint. 

"  The  subject  of  replevin  and  distress  will  be  understood  better  if 
we  trace  it  from  its  commencement  through  all  its  stages.  When 
any  one  had  a  complaint  that  his  cattle  were  taken  or  detained 
against  gage  and  pledge,  he  either  applied  for  a  writ  commanding 
the  sheriff  quod  replegiari  facias,  as  we  saw  in  Glanville's  time  ;  ^ 
or  made  a  verbal  complaint  to  the  sheriff,  who,  upon  having  secur- 
ity de  prosequendo,  properly  given,  would,  without  a  writ,  proceed 
to  make  replevin.  The  manner  of  replevying  was  this  :  The  sheriff 
went  in  person,  or  sent  one  of  his  officers,  to  the  place  where  the 
cattle  were  detained,  and  demanded  a  sight  of  them.  If  this  was 
denied  him,  or  any  violence  was  done  to  prevent  it,  he  might  im- 
mediately raise  the  hue  and  cry,  and  apprehend  the  oflenders,  as 
persons  who  acted  in  manifest  violation  of  the  king's  peace,  and 
put  them  in  prison.  If  he  could  not  find  the  cattle  to  make  de- 
liverance of  them,  and  it  appeared  that  they  were  driven  away ; 
then,  if  the  taker  had  any  land  and  chattels  in  the  county,  the 
sheriff's  officer  was  to  take  some  of  his  cattle  to  double  the  value, 
and  detain  them  until  the  distress  was  brought  back,  which,  in  af- 
ter times,  was  termed  a  taking  in  withernam.  If  the  sheriff's  power 
could  reach  no  further,  recourse  must  be  had  to  a  writ  of  attach- 
ment as  follows :  '  Si  A.  fecerit,  etc.,  prone  per  radium  et  salvos 
plegios  B.  quod  sit  eorum  justitiariis  nostris  apud  Westmonasterium, 
etc.,  ostenens  quare  cepit  averia  ipsius  in  comitatu,  etc.,  ubi  idem 
B.  non  habet  terras  nee  tenementa  et  ipsa  fugavita  a  prsedicto 
comitatu,  etc.,  usque  ad  comitatum  tuum  in  fraudem,  extra  potesta- 
tem  vice  comitis,  etc.,  et  ibidem  ea  detinet,  contra  pacem  noctram,ut 
dicit,  etc' 2 

"  If  no  opposition  was  made  to  the  sheriff  or  his  officer,  but  he 
was  suffered  to  have  a  sight  of  the  cattle,  he  was  immediately  to 
cause  them  to  be  delivered  to  the  complainant ;  and  then  he  gave  a 
day  to  both  parties,  to  appear  at  the  next  county,  that  the  taker 
(who  could  not  deny  the  taking  against  the  sheriff's  testimony,  he, 
in  this  case,  having  the  authority  of  a  record)  might  show  his  tak- 
ing to  be  just ;  and  the  complainant,  that  it  was  unjust.  At  the 
day  appointed  in  the  county,  the  taker  could  have  no  essoin,  as  an 
unjust  taking  and  detention  against  gage  and  pledge  was  considered 
in  the  unfavorable  light  of  a  robbery,  and  was  held  to  be  against 
the  peace  even  more  than  a  disseisin  was.  At  the  day,  the  taker 
was  to  state  his  reasons  for  the  caption.     The  grounds  upon  which 

1  VoL  I.  Reeves'  History  of  English  Law,  440.  ^  Bracton,  157. 


ACTIONS    BEFORE    THE   STATUTE    OF   WESTMINSTER   II.  73 

a  justification  for  taking  cattle  might  be  rested  were  many," 
[Thus,]  "  The  defendant  might  avow  the  taking  to  be  just,  because 
he  had  a  freehold  in  which  neither  the  plaintiff  nor  any  one  else 
had  a  right  of  common,  or  other  easement,  and  yet  the  plaintiff  had 
put  his  cattle  there  without  any  right,  and  l^herefore  he  took  them  ; 
though  he  was  ready  to  restore  them  if  the  plaintiff  would  abstain 
from  the  like  trespasse,  which  he  refused  to  do."  Eeeves'  History 
of  English  Law,  Vol.  II.  pp.  308,  309,  310. 


EEPLEVIN   AFTER   THE   STATUTE   OF   MARLEBEIDGE. 

STATUTE   OF    WESTMINSTER   THE    SECOND.      [1285.] 
Enacted  13  Edward  I.  c.  2,  s.  1. 

A    RECORDARE    TO    REMOVE    A    PLAINT    TO    PLEDGES    TO    PROSECUTE    SUIT. 
SECOND    DELIVERANCE. 

Cap.  II. 

Forasmuch  as  lords  of  fees  distraining  their  tenants  for  services 
and  customs  due  unto  them,  are  man}'  times  grieved,  because  their 
tenants  do  replevy  the  distress  by  writ,  or  without  writ :  And  when  the 
lords,  at  the  complaint  of  their  tenants,  do  come  by  attachment  into 
the  count}-,  or  unto  another  court,  having  power  to  hold  pleas  of 
withernam,  and  do  avow  the  taking  good  and  hiwful,  by  reason  that 
the  tenants  disavow  to  hold  aught,  nor  do  claim  to  hold  anything  of 
him  which  took  the  distress  and  avowed  it,  he  that  distrained  is 
amerced,  and  the  tenants  go  quit ;  to  whom  punishment  cannot  be 
assigned  for  such  disavowing  by  record  of  the  county,  or  of  other 
courts  having    no  record. 

"XL  It  is  provided  and  ordained  from  henceforth.  That  where 
such  lords  cannot  obtain  justice  in  counties  and  such  manner  of  courts 
against  their  tenants,  as  soon  as  they  shall  be  attached  at  the  suit  of 
their  tenants,  a  writ  shall  be  granted  to  them  to  remove  the  plea  before 
the  justices,  afore  whom,  and  none  other  where,  justice  may  be  minis- 
tered unto  such  lords  ;  and  the  cause  shall  be  put  in  the  writ,  because 
such  a  man  distrained  in  his  fee  for  services  and  customs  to  him  due. 
3.  Neither  is  tliis  act  prejudicial  to  the  law  commonly  used,  which  did 
not  permit  that  any  plea  should  be  moved  before  justices  at  the  suit  of 
the  defendant.  4.  For  though  it  appear  at  the  first  show  that  the  ten- 
ant is  plaintiff,  and  the  lord  defendant,  nevertheless,  having  respect  to 
that,  that  the  lord  hath  distrained,  and  sueth  for  services  and  customs 
being  behind,  he  appeareth  indeed  to  be  rather  actor,  or  plaintiff,  than 
the  defendant.     5.  And  to  the  intent  the  justices  may  know  upon  what 


74  CASES    ON   COMxMON-LAW   PLEADING. 

fresh  seisin  the  lords  ma}'  avow  the  distress  reasonable  upon  their  ten- 
ants. 6.  From  henceforth  it  is  agreed  and  enacted,  That  a  reasonable 
distress  maj'  be  avowed  upon  the  seisin  of  any  ancestor  or  predecessor 
since  the  time  that  a  writ  of  novel  disseisin  hath  run.  7.  And  because 
it  chancetli  sometimes  that  the  tenant,  after  that  he  hath  replevied  his 
beasts,  doth  sell  or  aliene  them,  whereb}'  return  cannot  be  made  unto 
the  lord  that  disti-ained,  if  it  be  adjudged. 

"  III.  It  is  provided,  That  sheriffs  or  bailiffs  from  henceforth  shall 
not  only  receive  of  the  plaintiffs  pledges  for  the  i)ursuing  of  the  suit, 
before  they  make  deliverance  of  the  distress,  but  also  for  the  return  of 
the  beasts,  if  return  be  awarded.  2.  And  if  any  take  pledges  other- 
wise, he  shall  answer  for  the  price  of  the  beasts,  and  the  lord  that  dis- 
traineth  shall  have  his  recovery  by  writ,  that  he  shall  restore  unto  him 
so  many  beasts  or  cattle ;  3.  And  if  the  bailiff  be  not  able  to  restore, 
his  superior  shall  restore.  4.  And  forasmuch  as  it  happeneth  sometime, 
that  after  the  return  of  the  beasts  is  awarded  unto  the  distrainor,  and 
the  party  so  distrained,  after  that  the  beasts  be  returned,  doth  replevy 
them  again,  and  when  he  seeth  the  distrainor  appearing  in  the  court 
readv  to  answer  him  doth  make  default,  whereby  return  of  the  beasts 
ought  to  be  awarded  again  unto  the  distrainor,  and  so  the  beasts  be 
replevied  twice  or  thrice,  and  infinitel}-,  and  the  judgments  given  in 
the  King's  Court  take  no  effect  in  this  case,  whereupon  no  remedy  hath 
been  yet  provided  :  5.  In  this  case  such  process  shall  be  awarded,  that 
so  soon  as  return  of  the  beasts  shall  be  awarded  to  the  distrainor,  the 
sheriff  shall  be  commanded  by  a  judicial  writ  to  make  return  of  the 
beasts  unto  the  distrainor;  in  which  writ  it  shall  be  expressed,  that 
the  sheriff  shall  not  deliver  them  without  writ,  making  mention  of  the 
judgment  given  by  the  justices,  which  cannot  be  without  a  writ  issuing 
out  of  the  rolls  of  the  said  justices  before  whom  the  matter  was  moved. 
6.  Therefore  when  he  cometh  before  the  justices,  and  desireth  replevin 
of  the  beasts,  he  shall  have  a  judicial  writ,  that  the  sheriff  taking  surety 
for  the  suit,  and  also  of  the  beasts  or  cattle  to  be  returned,  or  the  price 
of  them  (if  return  be  awarded)  shall  deliver  unto  him  the  beasts  or  cat- 
tle before  returned,  and  the  distrainor  shall  be  attached  to  come  at  a 
certain  day  before  the  justices,  aforewhom  the  plea  was  moved  in  pres- 
ence of  the  parties.  7.  And  if  he  that  replevied  make  default  again, 
or  for  other  cause  return  of  the  distress  be  awarded,  being  now  twice 
replevied,  the  distress  shall  remain  irrepleviable.  8.  But  if  a  distress 
be  taken  of  new,  and  for  a  new  cause,  the  process  aforesaid  shall  be 
observed  in  the  same  new  distress." 


ACTIONS   BEFORE    THE    STATUTE   OF   WESTMINSTER    11.  75 

HALLET  V.  BYRT. 

In  the  King's  Bench.     1C9G. 

Reported  5  Moderx,  252. 

Since  the  sheriff  in  his  county  court  could  not  make  replevin,  but  by  writ 
in  open  court,  at  least  before  the  statute  of  Marlebridge  which  gave  the  per- 
mission;  the  hundred  courts,  which  are  derived  out  of  the  county  courts,  and 
to  which  the  statute  of  IMarlebridge  does  not  extend,  cannot  grant  replevins  out 
of  court. 

Trespass  against  Byrt  and  Hallet,  for  taking  and  detaining  the 
plaintiff's  cattle. 

The  defendants  plead  not  guilty  as  to  all,  but  the  taking  of 
three  cows  ;  and  as  to  that,  they  say,  that  the  hundred  of  Beanii li- 
ster is  an  ancient  liundred,  whereof  the  Bishop  of  Salisbury  was 
seised  in  fee,  and  that  he  and  his  predecessors  have  time  out  of 
mind  kept  a  court  there  from  three  weeks  to  three  weeks,  for  the 
trial  of  personal  actions  under  the  value  of  40s.,  and  so  prescribes 
to  grant  replevins  either  by  himself  or  steward  in  court  or  out  of 
court,  upon  complaint  made  to  them  of  the  taking  and  unjustly 
detaining  any  cattle  within  the  said  hundred. 

That  the  Bishop  did  afterwards  convey  this  hundred  to  one 
Whirlock  for  three  lives,  by  virtue  whereof  he  was  seised.  That  the 
plaintiff  and  one  Rodbart  took  and  impounded  the  cows  within  the 
said  hundred,  being  the  cows  of  a  stranger,  who  made  comphiint 
thereof  to  the  steward,  and  he  directed  his  warrant  to  the  bailiff  of 
the  hundred  and  to  the  said  Hallet,  commanding  them  to  replevy 
the  cattle,  by  virtue  whereof  Hallet  and  the  other  defendant  Byrt, 
in  auxilium  ejus,  did  take  and  deliver  them  to  the  owner,  and 
traversed  that  they  were  guilty  of  the  taking  at  any  time  before 
the  warrant,  or  after  the  return,  aliter  vel  alio  modo. 

The  plaintiff  hath  demurred,  and  showed  for  cause,  that  this  plea 
did  amount  to  the  general  issue. 

But  the  court  did  not  speak  to  this  point. 

They  [the  court]  held  that  at  common  law  no  replevin  was 
made  by  plaint,  for  that  was  a  remedy  given  by  the  statute  of 
Westminster  the  first,  cap.  16,  the  other  was  by  writ  of  justities  in 
replevin  directed  to  the  sheriff',  who  thereupon  either  went  him- 
self, or  made  a  precept  to  his  bailiff  to  make  deliverance.  Now  if 
the  sheriff  in  his  county  court,  which  is  a  court  incident  to  his 
office,  could  not  make  a  replevin,  but  by  writ  in  open  court,  before 
the  statute  of  Marlbridge,  wliich  gives  a  quicker  remedy  by  plaint, 
and  was  made  for  the  benefit  of  the  owner  of  the  cattle,  that  he 


76  CASES   ox    COMMON-LAW   PLEADING. 

should  not  stay  from  them  till  next  court;  how  can  the  hundred- 
court,  wliicdi  is  derived  out  of  the  county  court,  prescribe  to  grant 
replevins  out  of  court,  when  the  authority  of  the  sheriff  himself  so 
to  do  began  by  an  act  of  parliament  ?  It  is  true,  all  these  courts  do 
hold  plea  in  replevins,  but  it  is  illegal,  for  the  party  ought  to  go 
to  the  sheriff  for  that  purpose,  whose  court  is  in  nature  of  a  court- 
baron. 

Therefore  this  custom  [for  the  hundred  courts  thus  to  grant 
replevins]  was  held  to  be  void,  for  it  was  against  law  and  reason ; 
and  so  the  plaintiff  had  judgment,  the  plea  being  naught. 


STATUTE  XI.  GEORGE   II.  [1738]. 
Cap.  XIX. 

AN    ACT     FOR    THE    MORE    EFFECTUAL    SECURING    THE    PAYMENT    OF    RENTS,    AND 
PREVENTING    FRAUDS    BY    TENANTS. 

XXIII.  And  to  prevent  vexatious  replevins  of  distresses  taken  for 
rent,  Be  it  enacted  by  the  authorit}'  aforesaid,  That  from  and  after 
the  said  twenty-fourth  day  of  June,  one  thousand  seven  hundred  and 
thirty-eight,  all  sheriffs,  and  other  officers  liaving  authority  to  grant 
replevins,  may  and  shall  in  every  replevin  of  a  distress  for  rent,  take 
in  their  own  names,  from  the  plainlitf,  and  two  responsible  persons  as 
sureties,  a  bond  in  double  the  value  of  the  goods  distrained  (such 
value  to  be  ascertained  b}-  the  oath  of  one  or  more  credible  witness  or 
witnesses  not  interested  in  the  goods  or  distress,  which  oath  the 
person  granting  such  replevin  is  hereb}-  authorized  and  required  to 
administer)  and  conditioned  for  prosecuting  the  suit  with  effect  and 
without  dela}',  and  for  duh'  returning  the  goods  and  chattels  distrained, 
in  case  a  return  shall  be  awarded,  before  any  deliverance  be  made  of 
the  distress;  and  that  such  sheriff,  or  other  officer  as  aforesaid,  taking 
an}'  such  bond,  shall  at  the  request  and  costs  of  the  avowant,  or 
person  making  conuzance,  assign  such  bond  to  the  avowant  or  person 
aforesaid,  by  indorsing  the  same,  and  attesting  it  under  his  hand  and 
seal,  in  the  presence  of  two  or  more  credible  witnesses  ;  which  ma}"  be 
done  without  any  stamp,  provided  the  assignment  so  indorsed  be  duly 
stamped  before  any  action  brought  thereupon;  and  if  the  bond  so 
taken  and  assigned  be  forfeited,  tl)e  avowant,  or  person  making  con- 
uzance, may  bring  an  action  and  recover  thereupon  in  his  own  name  ; 
and  the  court  where  such  action  shall  be  brought  may  by  a  rule  of  the 
same  court  give  such  relief  to  the. parties  upon  such  bond,  as  may  be 
agreeable  to  justice  and  reason  ;  and  such  rule  shall  have  the  nature 
and  effect  of  a  defeasance  to  such  bond. 


ACTIONS    BEFORE    THE    STATUTE    OF    WESTMINSTER   II.  77 


WRIT   DE   WITHERNAM. 

The  king  to  the  sheriff  of  Lincolnshire,  greeting ;  Whereas  we  have 
many  times  commanded  you  that  justly,  etc.  to  A.  his  cattle  which  B., 
etc.  or  signify  the  cause,  etc.  wherefore  you  would  not  or  could  not 
execute  our  command  many  times  directed  to  you  thereupon  ;  and  you 
have  signified  to  us,  that  after  the  aforesaid  B.  took  the  cattle  of  the 
aforesaid  A.  in  your  county,  he  drove  them  out  of  the  said  county,  into 
the  county  of  B.  whereby  you  could  not  replevy  them  to  the  same  A. 
We  being  willing  to  counteract  the  malice  of  him  the  said  B.  in  this 
behalf,  command  you,  that  you  take  the  cattle  of  the  aforesaid  B.  in 
your  bailiwick  in  withernam,  and  detain  them  until  you  can,  according 
to  the  law  and  custom  of  our  kingdom,  replevy  to  the  same  A.  his 
cattle  aforesaid,  according  to  the  tenor  of  our  commands  aforesaid 
before  to  you,  etc.^ 

SCOPE  AND   NATURE   OF   THE  ACTION. 

FLETCHER   v.  WILKINS. 

Ix  THE  King's  Bench.     1805. 

Reported  6  East,  286. 

Replevin  does  not  lie  for  damages  merely. 

Lord  EUenborough,  C.  J.,  delivered  the  unanimous  judgment  of 
the  court. 

"  This  was  an  action  of  replevin  against  four  defendants,  in  which 
the  two  first  defendants  avow  as  overseers  of  the  poor  of  the  ham- 
let of  Milton,  in  the  parish  of  Shipton,  in  the  county  of  Oxford  ; 
the  third,  as  churchwarden  of  the  same  hamlet;  and  the  fourth 
defendant,  as  their  bailiff,  makes  cognizance  for  taking  the  plain- 
tiffs cows  under  the  warrant  of  two  justices  of  peace  for  levying 
by  distress  upon  the  goods  and  chattels  of  the  plaintiff  a  poor's 
rate,  after  the  same  had  been  duly  demanded.  The  defendants 
conclude  their  avowry  and  cognizance  by  averring,  that  no  demand 
of  the  perusal  or  copy  of  the  warrant  was  ever  made  upon  or  left 
at  the  usual  place  of  abode  of  the  defendants  by  the  plaintiff,  or 
his  attorney,  or  agent,  as  required  by  the  statute;  and  pray  judg- 
ment and  a  return  of  the  cows,  etc.  To  which  avowry  there  is  a 
frivolous  plea  in  bar,  and  a  demurrer  thereto ;  assigning  for  cause, 
that  the  plaintiff  has  not  by  his  plea  to  the  avowry  and  cognizance 

1  "  And  in  the  writ  of  withernam  he  ought  to  rehearse  the  cause  which  the  sheriff 
returneth  for  which  he  cannot  replevy  them."    Fitz.  N.  B.,  73  F. 


78  CASES    ON    COMMON-LAW   PLEADING. 

in  any  manner  answered  that  part  thereof  in  which  it  is  alleged, 
'that  no  demand  was  made  of  the  perusal  and  copy  of  the  warrant 
therein  mentioned;'  but  hath  by  his  said  plea  admitted  that  no 
such  demand  was  made.     To  this  there  is  a  joinder  in  demurrer. 
And  the  question  arising  upon  these  pleadings  is,  whether  the  stat. 
24  Geo.  II.  c.  44,  s.  6  (which,  provides   that  no  action  shall  be 
brought  against  any  constable  or  other  officer  for  anything  done 
in  obedience  to  the  warrant  of  a  justice  until  demand  shall  have 
been  made,  in  the  manner  prescribed  by  that  act,  of  the  perusal 
and  copy  of  such  warrant,  and  the  same  hath  been  refused  or  neg- 
lected for  the  space  of  six  days  after  such  demand)  extend  to  the 
action  of  replevin.     The  cases  upon  this  subject  are  Milward  and 
Caffin,  2  Sir  W.  Blackstone's  Rep.  1330 ;  in  which  case  the  court 
determined  that  the  action  of  replevin  was  '  an  action  in  rem  to 
which  that  statute  had  been  never  holden  to  extend :'  and  Pearson 
'V.  Eoberts,  AVilles's  Eep.  668  ;  in  which  it  was  decided  that  an  action 
of  replevin  could  not  be  maintained  against  persons  making  a  dis- 
tress for  not  performing  the  highway  duty,  as  a  demand  had  not, 
previous  to  the  commencement  thereof,  been  made  of  the  justices' 
warrant.     And  Lord  Chief  Justice  Willes  there  distinguished  be- 
tween a  replevin  by  plaint  or  mandatory  writ  to  the  sheriff,  to  have 
the  goods  again,  which   he  stated  not  to  be  within  the  statute, 
and  replevin  by  action  to  recover  damages.  And  in  addition  to  this 
there  is  the  authority  of  an  obiter  dictum  of  Lord  Ken  yon  in  Har- 
pur  V.  Carr,  7  Term  Eep.  270,^  that  but  for  the  case  of  Milward 
and   Caffin    he  should  have  thought  replevin  within  the  statute. 
And  one  cannot  but  feel  the  force  of  the  observation  made  by  Lord 
Kenyon  on  that  occasion,  'that  convenience  requires  that  it  should 
be  so,  otherwise  it  is  in  the  plaintiffs  power  to  evade  the  provi- 
sions of  the  act,  by  adopting  a  particular  mode  of  proceeding  which 
depends  on  his  own  choice.'     The  case  in  Willes's  Eeports  seems 
to  go  on  a  distinction  between  an  action  of  replevin  w^here  dam- 
ages are  to  be  recovered,  and  a  proceeding  only  to  have  the  goods 
again.     But  the  industry  of  the  gentleman  who  very  ably  argued 
this  case  has  not  succeeded  in  discovering  such  first-mentioned 
mode  of  proceeding  by  action  of  replevin  to  recover  damages,  as 
contradistinguished    from   proceedings    to  have  the  goods  again. 
There  does  not  appear  in  any  of  the  books  any  proceeding  in  re- 
plevin w^hich  has  not  commenced  by  writ,  requiring  the  sheriff 
to  cause  the  goods  of  the  plaintiff  to  be  replevied  to  him,  or  by 

1  In  that  case  it  was  decided,  that  a  churchwarden  taking  a  distress  for^  poor's 
rate  under  a  warrant  of  magistrates  was  entitled  to  the  protection  of  tlie  statute  24 
Geo.  IL  c.  44,  in  an  action  of  trespass. 


ACTIONS    BEFORE    THE    STATUTE    OF    WESTMINSTER    II.  79 

plaint  in  the  sheriffs'  court,  the  immediate  process  upon  which  is 
a  piecept  to  replevy  the  goods  of  the  party  levying  the  plaint. 
Both  those  modes  of  proceeding  are  in  rem,  i.  e.  to  have  the  goods 
again ;  and  if  so,  and  there  should  not  be  any  action  of  replevin 
for  the  recovery  of  damages  only,  then  the  case  in  Lord  Chief  Jus- 
tice Willes's  Eeports  will  be  an  authority,  in  addition  to  that  of 
Milward  and  Caffin,  to  show  that  the  statute  24  Geo.  II.  does  not 
extend  to  the  case  now  before  the  court.  The  reason  assigned  by 
Lord  Kenyon  ab  inconvenienti  has  undoubtedly  great  weight ;  but 
on  the  other  hand  it  appears  to  us  that  the  inconvenience  of  de- 
priving the  subject  of  his  remedy  by  replevin  is  full  as  great,  if  not 
greater:  for  it  may  happen  that  no  damages  which  a  jury  is  prop- 
erly authorized  to  give  can  compensate  the  loss  of  a  particular 
chattel  which  the  owner  may  be  forever  deprived  of,  if  he  cannot 
sue  a  replevin."  Judgment  for  the  plaintiff.^ 


SHANNON   IN   REPLEVIN  v.   SHANNON. 
Irish  Court  of  Chancery.    1804. 
Reported  1  Schoales  and  Lefroy,  324. 
For  replevin  to  lie,  there  must  have  been  a  taking. 

Mr.  Bell  had  obtained  a  conditional  order  for  an  attachment 
against  the  plaintiff  for  an  abuse  of  the  writ  in  replevin,  in  issuing 
and  executing  it  in  such  a  case  as  the  present,  and  for  restitution 
of  the  goods  taken.  The  affidavit  of  the  defendant  William  Shan- 
non,  on  which  the  rule  was  made,  stated  that  a  writ  had  issued  to 
the  sheriff  of  the  county  of  Down  to  replevy  one  mahogany  desk, 
etc.,  that  the  said  goods  were  the  property  of  the  defendant,  (he 
having  bought  them)  and  were  in  his  possession  at  the  time  of  the 
taking,  and  that  they  ivere  not  taken  as  a  distress  for  rent.  That 
the  plaintiff,  Samuel  Shannon,  who  is  the  defendant's  father,  is  far 
advanced  in  years  and  become  weak  in  understanding:  that  he 
had  been  seduced  from  the  defendant's  house  where  he  had  before 
resided,  to  the  house  of  one  Francis  Moore,  who  employed  an  at- 
torney to  endeavor  to  get  the  goods  in  question.  The  affidavit 
then  stated  the  circumstances  of  the  taking  and  carrying  away  of 
the  goods ;  and  that  a  bill  had  been  filed  in  the  Exchequer  at  the 
suit  of  Samuel  Shannon  against  defendant,  to  impeach  certain 
deeds  under  which  the  defendant  claimed  to  hold  these  goods. 

^  The  reporter's  statement  of  facts,  the  arguments,  and  part  of  the  opinion  are 
omitted. 


80  CASES    ON    COMMON-LAW    PLEADING. 

On  the  part  of  the  plaintiff  were  read,  the  affidavit  of  Francis 
Moore  and  of  Mr.  John  Norman  the  attorney  for  the  plaintiff, 
which  stated  the  belief  of  the  deponent  tliat  the  goods  were  the 
property  of  the  plaintiff  Samuel  Shannon,  who  had  been  obliged  to 
leave  the  house  of  the  defendant,  (his  natural  son)  from  the  ill 
treatment  he  received  there;  that  the  plaintiff  had  had  the  goods 
in  his  possession  while  he  lodged  in  the  defendant's  house,  and 
that  when  he  quitted  the  house,  defendant  wrongfully  detained 
them.  And  Mr.  Norman  swore  that  having  stated  these  facts  to 
eminent  counsel,  he  was  advised  to  take  this  proceeding  by  replevin. 
Mr.  Saurin,  for  the  plaintiff,  referred  to  the  authorities  already 
cited  in  Chamberlain's  case  and  the  usage  in  this  country  :  ^  and  ob- 
served that  as  trespass  rnay  be  brought  upon  a  constructive  taking 
founded  on  a  detention  without  right,  so  also  might  replevin. 

Mr.  Bell  for  the  defendant.  Replevin  is  founded  solely  on  a 
taking  by  distress ;  3  Bl.  Com.  146. 

The  Lord  Chancellor  (after  observing  that  no  taking  (which  is  the 
foundation  of  replevin)  was  suggested  in  this  case,  and  that  it  was 
not  denied  on  the  part  of  the  plaintiff  that  the  bill  in  the  Exchequer 
related  to  the  same  goods)  proceeded. 

"  I  have,  in  consequence  of  what  passed  the  other  day,  conversed 
with  the  Lord  Chief  Justice  on  this  subject ;  and  he  thinks  (and  it  is 
the  opinion  of  the  other  judges  as  he  informs  me)  that  the  use  of 
the  writ  of  replevin  in  cases  like  the  present  is  a  crying  griev- 
ance :  the  courts  of  law  are  put  into  a  difficulty :  they  do  not  know 
how  to  deal  with  it.  How  is  a  party  to  be  put  into  the  situation 
he  ought  to  be  in  when  a  right  to  property  is  to  be  tried  ?  the  first 
evidence  of  property  is  possession,  and  that  you  take  from  him  in 
the  first  instance,  and  you  throw  the  onus  of  proving  title  upon 
him,  on  whom,  as  having  the  jprima  facie  title,,  possession,  that 
onus  ought  not  to  be  thrown.  The  defendant  in  this  case  may 
have  conducted  himself  extremely  ill,  but  the  law  has  provided 
certain  remedies  adapted  to  certain  cases ;  and  upon  the  affidavits 
which  are  made  on  his  behalf,  it  appears  that  his  remedy  is  either 
detinue  or  trover. 

"  Here  is  a  son  — a  natural  son  it  is  said,  who  has  got  deeds  of 
gift  (perhaps  fraudulently)  of  his  father's  property:  the  father 
having  resided  in  the  house  of  his  son  where  the  goods  were,  quits 
the  house,  and  demands  the  goods.  The  goods  were  in  his  son's 
possession  all  along;  at  least  the  possession  was  equivocal,  and 
that  is  not  a  case  to  which  the  writ  of  replevin  can  be  applied ;  it 
must  be  to  the  case  of  an  unequivocal  possession,  and  of  a  taking; 

1  Ireland. 


ACTIONS    BEFORE   THE    STATUTE    OF    WESTMINSTER   II.  81 

it  would  Otherwise  not  be  reasonable ;  for  if  there  had  not  been  a 
taking  from  the  plaintiff,  but  that  the  defendant  had  the  goods  in 
his  quiet  possession  by  other  means,  the  law  presumes  that  they 
are  prima  facie  tlie  property  of  the  defendant,  and  there  is  no 
reason  why  it  should  in  such  a  case  give  a  writ  to  change  the 
possession  in  the  first  instance  against  such  presumption  of  prop- 
erty. It  is  much  fairer,  to  throw  the  onus  on  the  person  who  has 
not  had  the  possession  tliau  on  him  who  has  had  it. 

"  On  the  other  hand,  what  has  been  said  by  the  defendant's  coun- 
sel would  confine  it  too  much  ;  it  is  an  action  founded  upon  any 
taking  by  the  party.  The  writ  is  founded  on  a  taking,  and  the 
right  which  the  party  from  whom  the  goods  are  taken  has  to  have 
them  restored  to  him,  until  the  question  of  title  to  the  goods  is 
determined.  The  person  who  takes  them  may  claim  property  in 
them,  and  if  he  does,  the  sheriff  cannot  deliver  the  goods  until 
that  question  is  tried:  but  that  claim  of  property  can  be  made 
only  when  there  has  been  a  taking :  and  it  appears  to  me  that  the 
writ  of  replevin  was  calculated  in  such  cases  to  supply  the  place  of 
detinue  or  trover,  and  to  prevent  the  party  from  whom  the  goods 
are  taken,  being  put  to  those  actions,  except  where  the  other  can 
shew  property.  But  if  this  writ  could  be  thus  used,  I  do  not  see 
why  it  was  necessary  ever  to  bring  detinue  or  trover. 

"  I  am  always  sorry  to  hear  Mr.  Justice  Blackstone's  commen- 
taries cited  as  an  authority :  he  would  have  been  sorry  himself  to  hear 
the  book  so  cited:  he  did  not  consider  it  such.  His  definition 
of  the  action  of  replevin  is  certainly  too  narrow :  many  old  author- 
ities will  be  found  in  the  books  of  replevin  being  brought  where 
there  was  no  distress. 

"As  the  practice  has  existed  in  this  country,  of  issuing  the  writ  in 
cases  like  the  present,  I  shall  not  grant  the  attachment  in  this  case, 
provided  the  goods  are  returned  and  the  costs  of  this  motion  paid." 

MATTER   OF   WILSONS,   BANKRUPTS. 

Irish  Court  of  Chancery.     March  1,  1804. 

Reported  I   Sciioales  and  Lefkoy,  320. 

For  replevin  to  lie,  there  must  have  been  a  wrongful  taking. 

A  person  claiming  property  in  some  corn,  which  was  in  posses- 
sion of  the  bankrupt,  and  which  the  assignees  insisted  on  holding 
as  part  of  the  bankrupt's  effects,  brought  a  replevin,  and  under  it 
took  the  corn  from  the  assignees.     The  replevin  suit  proceeded; 

6 


82  CASES   ON   COMMON-LAW   PLEADING. 

the  assignees  pleaded  property,  and  the  cause  was  proceeding  to 
trial,  when  a  motion  was  made,  in  the  matter  of  the  bankrupt,  by 
the  person  claiming  the  corn,  founded  upon  affidavits  as  to  the 
property,  for  an  order  on  the  assignees  to  deliver  it  up  to  him,  and 
that  the  assignees  might  be  restrained  from  compelling  him  to  go 
to  trial  at  law.  Upon  this  motion  the  Lord  Chancellor  expressed 
his  astonisliment  at  the  use  made  of  the  writ  of  replevin  in  this 
country ;  ^  and  observed  that  this  was  not  such  a  taking  as  was 
intended  by  the  writ,  which  is  merely  meant  to  apply  to  this  case, 
namely,  where  A.  takes  goods  wrongfully  from  B.  and  B.  applies  to 
have  them  redelivered  to  him  upon  giving  security  until  it  shall 
appear  whether  A.  has  taken  them  rightfully.  But  if  A.  be  in 
possession  of  goods,  in  which  B.  claims  a  property,  this  is  not  the 
writ  to  try  that  right ;  there  are  other  actions  to  try  the  right  of 
property.  It  was  ordered,  "  That  a  special  issue  should  be  tried  at 
the  expense  and  risque  of  the  claimant,  whether  the  bankrupt  had 
in  his  possession,  at  the  time  of  his  bankruptcy,  the  corn  in  ques- 
tion, and  whether  the  same  was  the  property  of  the  petitioner,  and 
the  replevin  suit  to  be  discontinued,  the  claimant  paying  the  cost 
thereof." 

MENNIE    V.    BLAKE. 

In  the  Queen's  Bench.     1856. 

Reported  6  Ellis  and  Blackburn,  842. 

For  replevin  to  lie,  there  must  have  been  an  unlawful  taking  by  fraud  or 
violence. 

Replevin.     Plea :  Non  cejnt.     Issue  thereon. 

The  cause  came  on  to  be  tried  before  Crowder,  J.,  at  the  last 
Spring  Assizes  for  Devon.  The  following  account  of  tlie  facts 
which  then  appeared  in  evidence  is  taken  from  the  judgment  of 
this  court. 

"  One  Facey  was  indebted  to  the  plaintiff.  He  brought  him  £15 
towards  payment  of  the  debt,  but  requested  and  obtained  permis- 
sion to  lay  the  money  out  in  the  purchase  of  a  horse  and  cart, 
which  were  to  be  the  property  of  the  plaintiff,  but  of  which  Facey 
was  to  have  the  possession  and  the  use,  subject  to  such  occasional  use 
as  plaintiff  might  require  to  have  of  them,  and  to  their  being  given 
up  to  plaintiff  when  he  should  demand  them.  Accordingly  Facey 
made  the  purchase  :  the  possession  and  the  use  were  substantially 
with  him ;  he  fed,  stabled,  and  took  care  of  the  horse ;  there  was 

1  Ireland. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  83 

some  evidence  that  his  name  was  on  the  front  of  the  cart;  certainly 
plaintiff's  was  on  the  side ;  under  what  circumstances  placed 
there  the  evidence  was  contradictory,  the  plaintiff  alleging  it  to 
have  been  placed  in  the  ordinary  way  as  an  evidence  of  property, 
the  defendant  insinuating  that  it  was  so  placed  in  order  to  protect 
it  from  Facey's  other  creditors.  It  is  not  however  material, 
because  on  the  one  hand  the  plaintiffs  property  we  take  to  be 
indisputable,  and  on  the  other  we  do  not  think  there  is  evidence 
enough  to  charge  the  defendant  with  fraud  or  collusion  in  the  cir- 
cumstances under  which  he  obtained  possession,  and  w^hich  w^e  now 
proceed  to  state. 

"  Facey  determined  to  emigrate ;  and  the  defendant  knew  of  his 
intention  ;  but  the  plaintiff  did  not.  The  horse  and  cart  were  used 
in  transporting  Facey's  effects  to  the  pier  at  which  he  was  to  em- 
bark ;  and  the  defendant,  to  whom  he  owed  money  for  fodder 
supplied  to  the  horse,  went  with  him  to  procure  payment  if  he 
could ;  at  parting  Facey  delivered  the  horse  and  cart  to  him,  telling 
him  to  take  them  for  the  debt,  but  adding  that  he  owed  the  plain- 
tiff money  also,  and  that,  if  he  would  discharge  the  debt  due  to  the 
defendant,  which  was  much  less  than  their  value,  he  was  to  give 
them  up  to  him.  In  this  manner  the  defendant  acquired  his  pos- 
session. The  plaintiff  for  some  time  remained  in  ignorance  of  what 
had  passed ;  and  afterwards,  coming  to  the  knowledge  of  it,  de- 
manded them;  but  the  defendant  refused  to  deliver  them  unless 
his  debt  were  paid:  whereupon  the  plaintiff  proceeded  to  replevy 
the  goods,  and  so  brought  the  present  action." 

Upon  these  facts  the  learned  judge  directed  a  verdict  for  the 
plaintiff,  with  leave  to  move  to  enter  a  verdict  for  the  defendant 
or  a  nonsuit,  if  under  such  circumstances  replevin  did  not  lie. 

Montague  Smith,  in  the  ensuing  term,  obtained  a  rule  nisi 
accordingly. 

Collier  and  Karslake,  in  last  Hilary  Term,  showed  cause.  [Argu- 
ment omitted.] 

Montague  Smith  and  Coleridge,  contra.     [Argument  omitted.] 

Cur.  adv.  vult. 

Coleridge,  J.,  now  delivered  judgment.  "  This  was  a  rule  to  enter 
a  nonsuit  or  verdict  for  the  plaintiff  on  a  plea  of  non  cepit  to  a 
declaration  in  replevin."  His  lordship  then  stated  the  facts  as  ante, 
p.  843,  and  then  proceeded  as  follows :  — 

"Upon  these  facts  the  question  raised  is,  Whether  there  was  any 
taking  of  the  horse  and  cart  from  the  plaintiff'  by  the  defendant  ? 


84  CASES    ON    COMMON-LAW   PLEADING. 

And  we  are  of  opinion,  looking  to  tlie  nature  and  purpose  of  the 
action  of  replevin,  that  there  was  no  taking  in  the  sense  in  which 
that  word  must  be  understood  in  this  issue.  The  whole  proceed- 
ing of  replevin,  at  common  law,  is  distinguished  from  that  in  tres- 
jiass  in  this,  among  other  things ;  that,  while  the  latter  is  intended 
to  procure  a  compensation  in  damages  for  goods  wrongfully  taken 
out  of  the  actual  or  constructive  possession  of  the  plaintiff,  the 
object  of  the  former  is  to  procure  the  restitution  of  the  goods 
themselves ;  and  this  it  effects  by  a  preliminary  ex  parte  interfer- 
ence by  the  officer  of  the  law  with  the  possession.  This  being  done, 
the  action  of  replevin,  apart  from  the  replevin  itself,  is  again  dis- 
tinguished from  trespass  by  this,  that,  at  the  time  of  declaring, 
tlie  supposed  wrongful  possession  has  been  put  an  end  to,  and  the 
litigation  proceeds  for  the  purpose  of  deciding  whether  he,  who  by 
the  supposition  was  originally  possessed,  and  out  of  whose  posses- 
sion the  goods  were  taken,  and  to  whom  they  have  been  restored, 
ought  to  retain  that  possession,  or  whether  it  ought  to  be  restored 
to  the  defendant.  Blackstone  (3  Com.  146),  after  observing  that 
the  Mirror  ascribes  the  innovation  of  this  proceeding  to  Glanvil, 
says  that  it  'obtains  only  in  one  instance  of  an  unlawful  taking, 
that  of  a  wrongful  distress.'  If  by  this  expression  he  only  meant 
that  in  practice  it  was  not  usual  to  have  recourse  to  replevin  ex- 
cept in  the  case  of  a  distress  alleged  to  be  wrongful,  he  was  prob- 
ably justified  by  the  fact.  But  there  are  not  wanting  authorities 
to  show  that  the  remedy  by  replevin  was  not  so  confined  ;  and  in 
the  case  of  Shannon  v.  Shannon  [1  Sch.  &  Lef.  324,  327],  Lord 
Kedesdale  finds  fault  with  this  passage,  saying  that  the  definition 
is  '  too  narrow,'  and  that  '  many  old  authorities  will  be  found  in 
the  books  of  replevin  being  brought  when  there  was  no  distress '  : 
and  the  learned  reporters,  in  a  note  to  the  passage,  refer  to  Spel- 
man's  Glossary,  485  (tit.  Eeplegio) ;  Doctrina  Placitandi,  Eeplevin, 
313  ;  Com.  Dig.  Eeplevin  (A) ;  and  Gilbert,  Distress  and  Eeplevin, 
58  (4th  ed.  p.  80). 

"  There  is  no  doubt  that  passages,  such  as  those  referred  to,  may 
be  found  stating  the  definition  very  broadly ;  yet  we  believe  that, 
when  the  authorities  on  which  some  of  them  rest  are  examined, 
and  when  due  attention  has  been  paid  to  the  context  in  others,  it 
will  appear  in  the  result  questionable,  at  the  least,  whether  the 
commentator's  more  qualified  definition  was  not  correct ;  at  least 
that  replevin  was  instituted  as  a  peculiar  remedy,  and  under  the 
statute  of  ]Marlbridge,  by  plaint  as  a  festinum  remedium  for  the 
injury  of  an  unlawful  distress. 

*•  Thus  in  2  Eoll.  Abr.  430,  Eeplevin  (B)  2,  it  is  said,  if  trespasser 


ACTIONS    BEFORE    THE   STATUTE   OF   WESTMINSTER   II.  85 

take  beasts,  replevin  lies  of  this  taking  at  election ;  the  authority 
for  this  is  Yearb.  Mich.  7  Hen.  IV.  fol.  28  B;  where,  the  counsel,  or 
another  judge,  alleging  the  contrary,  Gascoigne  [C.  J.  of  K.  B.]  says, 
'He  may  elect  to  have  replevin  or  writ  of  trespass;'  but  he  adds, 
or  the  reporter  adds,  'and  some  understand  that  he  cannot,'  for 
which  last  a  reason  is  given. 

"Again,  Com.  Dig.  Replevin  (A),  'Eeplevin  lies  of  all  goods  and 
chattels  unlawfully  taken ; '  for  this  no  authority  is  cited ;  but 
the  context  shows  that  the  Chief  Baron  was  thinking,  not  so  much 
of  the  circumstances  under  which  taken,  as  of  the  things  them- 
selves ;  for  he  adds,  '  whether  they  be  live  cattle,  or  dead  chattels,' 
or  '  a  swarm  of  bees,'  or  '  iron  of  his  mill,'  citing  Fitzherbert's 
Natura  Brevium,  in  whose  chapter  on  replevin  we  do  not  find  the 
law  so  broadly  laid  down.  As  to  the  passage  to  which  reference  is 
made  in  Lord  Chief  Baron  Gilbert,  it  should  be  remembered  that 
the  treatise  is  on  the  law  of  distresses  and  replevins,  and  the  pas- 
sage occurs  in  a  chapter  in  which  replevin  is  treated  of  with  refer- 
ence to  distress,  as  if  the  two  formed  parts  of  one  subject-matter. 
Little  therefore  can  be  inferred  from  the  generality  of  the  language 
in  a  single  sentence.  A  dictum  of  Lord  EUenborough  has  also 
been  referred  to  in  Dore  v.  Wilkinson,  2  Stark.  N.  P.  C.  287,  from 
which  the  inference  is  that  he  thought  replevin  might  conven- 
ientlv  be  had  recourse  to  more  often  than  it  was,  instead  of  Ijringincr 
trover;  but  it  was  an  observation  thrown  out  in  the  course  of  a 
cause,  a  recollection  of  what  Mr.  Wallace  used  to  say,  not  ruling 
any  point,  nor  deciding  anything  in  the  cause ;  much  importance 
ought  not  to  be  attached  to  such  casual  observations,  even  of  so 
great  a  judge,  at  Nisi  Prius.  On  the  other  hand,  Lord  Coke  seems 
to  be  authority  the  other  way.  In  Co.  Lit.  145  b,  is  the  follow- 
ing passage  :  '  A  replegiare  lyeth,  as  Littleton  here  teacheth  us, 
where  goods  are  distrained  and  impounded,  the  owner  of  the  goods 
may  have  a  writ  de  replegiare  facias,  whereby  the  sheriff  is  com- 
manded, taking  sureties  in  that  behalf,  to  redeliver  the  goods  dis- 
trained to  the  owner,  or  upon  complaint  made  to  the  sheriff'  he 
ought  to  make  a  replevy  in  that  county.  Replegiare  is  com- 
pounded of  re  and  plegiare,  as  much  as  to  say,  as  to  redeliver  upon 
pledges  or  sureties.* 

"From  a  review  of  these  and  other  authorities  which  might  be 
added,  it  may  appear  not  settled  whether  originally  a  replevy  lay 
in  case  of  other  takings  than  by  distress.  Nor  is  it  necessary  to 
decide  that  question  now ;  for,  at  all  events,  it  seems  clear  that 
replevin  is  not  maintainable  unless  in  a  case  in  which  there  has 
been  first  a  taking  out  of  the  possession  of  the  owner.    This  stands 


86  CASES    ON    COMMON-LAW   PLEADING. 

upon  authority  and  the  reason  of  the  thing.  We  have  referred 
already  to  a  dictum  of  Lord  Redesdale.  Three  cases  are  to  be 
found:  Ex  parte  Chamberlain  [1  Sch.  &  Lef.  320],  In  re  Wilsons 
[1  Sch.  &  Lef.  320,  note  </.],  and  Shannon  v.  Shannon  [1  Sch.  &  Lef. 
324],  in  which  the  law  is  so  laid  down  by  Lord  Eedesdale.  And 
these  are  cases  of  great  authority  ;  for  that  very  learned  judge 
found  the  practice  in  Ireland  the  other  way.  He  felt  the  incon- 
venience and  injustice  of  it :  he  consulted  with  the  Lord  Chief 
Justice  and  obtained  the  opinion  of  the  other  judges,  and  then  pro- 
nounced the  true  rule,  which,  in  one  of  these  cases.  In  re  Wilsons 
[supra'],  he  thus  states:  The  writ  of  replevin  'is  merely  meant  to 
apply  to  this  case  (namely),  where  A.  takes  goods  wrongfully  from  B. 
and  B.  applies  to  have  them  redelivered  to  him  upon  giving  secur- 
ity until  it  shall  appear  whether  A.  has  taken  them  rightfully. 
But  if  A.  be  in  possession  of  goods,  in  which  B.  claims  a  property, 
this  is  not  the  writ  to  try  that  right.'  Li  the  course  of  these  cases 
his  Lordship  points  out  liow  replevin  proceeds  against  the  general 
presumption  of  law  in  favor  of  possession ;  how  it  casts  upon  him 
who  was  in  possession  the  burden  of  first  proving  his  right ;  and 
h-e  puts  {Ex  2)cirte  Chamberlain  [1  Sch.  &  Lef.  322]),  as  a  rediidio 
ad  absurdum,  a  case  not  unlike  the  present.  '  Suppose,'  says  he, 
'  the  case  of  a  person  having  a  lien  on  goods  in  his  possession,  and 
who  insists  on  being  paid  before  he  delivers  them  up ;  I  do  not  see 
on  the  principles  insisted  on,  why  a  writ  of  replevin  may  not  issue 
in  that  case.'  The  reason  of  the  thing  is  equally  decisive :  as  a 
general  rule  it  is  just  that  a  party  in  the  peaceable  possession  of 
land  or  goods  should  remain  undisturbed,  either  by  the  party 
claiming  adversely  or  by  the  ofhcers  of  the  law,  until  the  right  be 
determined  and  the  possession  shpwn  to  be  unlawful.  But,  where, 
either  by  distress  or  merely  by  a  strong  hand,  the  peaceable  pos- 
session has  been  disturbed,  an  exceptional  case  arises ;  and  it  may 
be  just  that,  even  before  any  determination  of  the  right,  the  law 
should  interpose  to  replace  the  parties  in  the  condition  in  which 
they  were  before  the  act  clone,  security  being  taken  that  the  right 
shall  be  tried,  and  the  goods  be  forthcoming  to  abide  the  decision. 
Whatever  may  be  thought  of  Lord  Coke's  etymology,  what  he  says 
of  replegiare,  wliile  it  shows  his  understanding  of  the  law,  gives  a 
true  account  of  what  replevin  is,  a  redelivery  to  the  former  pos- 
sessor on  pledges  found.  But  this  is  applicable  clearly  to  excep- 
tional cases  only.  If,  wherever  a  party  asserts  a  right  to  goods  in 
the  peaceable  possession  of  another,  he  has  an  election  to  take 
them  from  him  by  a  replevin,  it  is  obvious  that  the  most  crying 
injustice  might  not  unfrequently  result.     Now,  in  the  present  case, 


ACTIONS    BEFORE    THE    STATUTE    OF    WESTMINSTER   II.  87 

Facey  was  not  the  servant  of  the  plaintiff;  nor  was  his  possession 
merely  tlie  possession  of  the  plaintiff ;  he  was  the  bailee  of  the 
plaintiff,  and  had  a  lawful  possession  from  the  delivery  of  the 
owner,  which  conferred  on  him  a  special  property.  This  did  not 
authorize  him  to  transfer  his  possession  to  the  defendant;  nor 
could  he  give  him  a  lien  for  his  debt  against  the  paramount  right 
of  the  true  owner  the  bailor ;  after  a  demand  and  refusal,  upon  the 
admitted  facts  in  this  case,  the  plaintiff  could  clearly  have  main- 
tained trover  against  the  defendant ;  but  yet  there  was  nothing 
wrongful  in  his  accepting  the  possession  from  Facey ;  he  acquired 
that  possession  neither  by  fraud  nor  violence ;  at  least  none  is 
found,  and  we  cannot  presume  either ;  and  he  retained  the  posses- 
sion on  a  ground  which  might  justify  the  retainer  until  the  alleged 
ownership  was  proved.  This  therefore,  in  our  opinion,  was  a  case 
in  which  the  plaintiff  could  not  proceed  by  replevin,  but  should 
have  proved  his  prior  right  in  trover  or  detinue.  .  .  . 

"  The  rule  should  be  absolute ;  not  to  enter  a  verdict,  but  a  non- 
suit." 

Eule  absolute  for  a  nonsuit.^ 


JAMES   DUGAN  v.  DANIEL  A.  NICHOLS. 
Supreme  Judicial  Court,  Massachusetts.     1878. 
Reported  125  Massachusetts,  576. 
Replevin  lies  for  a  wrongful  detention  merely. 

Eeplevin  of  13  barrels  of  oil.     Writ  dated  July  10,  1874. 

The  plaintiff  offered  evidence  tending  to  prove  that  he  bought 
the  oil  of  the  firm  of  Shaw  &  Bruce,  of  which  the  defendant  was 
the  assignee  in  bankruptcy,  and  paid  for  the  same ;  and  that  the 
oil  was,  when  purchased,  in  a  shed  belonging  to  the  firm,  where  it 
remained  until  it  was  replevied.  The  plaintiff  also  offered  evidence 
tending  to  prove  a  demand  of  the  defendant  before  the  date  of  the 
writ. 

The  defendant  testified  that  he  found  the  oil  in  question  on  the 
premises  of  Shaw  &  Bruce ;  that  he  never  heard  that  the  oil  be- 
longed to  the  plaintiff,  until  the  plaintiff  told  him  so  about  a  week 
before  the  date  of  the  writ:  and  that  the  plaintiff  never  made  any 
demand  upon  him,  and  upon  cross-examination,  in  reply  to  the 
question,  "  If  you  had  understood  Dugan  demanded  the  oil,  should 

1  Arguments  of  counsel  and  part  of  the  opinion  in  criticism  of  the  fact  that  the 
sheriff's  deputy  for  the  issuiug  of  replevins  was  the  plaintiff's  attorney  are  here 
omitted. 


88  CASES    ON    COMMON-LAW   PLEADING. 

you  have  given  it  up  ? "  answered,  "  I  should  not,  unless  my  coun- 
sel had  ordered  me  to."  Upon  examination  he  testified  that  he 
had  no  recollection  that  the  question  of  what  he  might  have  done 
had  ever  entered  his  mind  until  he  was  asked  the  question  as 
above. 

The  defendant  requested  the  judge  to  rule  that  it  was  not  a 
question  of  what  the  defendant  now  thought  he  might  have  done ; 
that  if  the  defendant's  testimony  was  taken  as  true,  it  would  not 
exempt  the  plaintiff  from  making  a  demand  before  bringing  his 
action ;  and  that  there  was  no  evidence  of  a  conversion.  The  jury 
returned  a  verdict  for  the  plaintiff;  and  the  defendant  alleged 
exceptions. 

C.  Sewwall,  for  the  defendant. 

S.  B.  Ives,  Jr.,  for  the  plaintiff,  was  not  called  upon. 

By  the  Court.  The  testimony  of  the  defendant  warranted  the 
jury  in  finding  an  unlawful  detention  of  the  goods,  which  was  all 
that  was  necessary  to  support  replevin.     Gen.  Sts.  c.  143,  §  10 ; 

Whitman  v.  Merrill,  125  Mass.  127.^ 

Exceptions  overruled.^ 

"  When  any  goods  exceeding  in  value  twenty  dollars,  are  unlaw- 
fully taken  or  detained  from  the  owner  or  person  entitled  to  the 
possession,  or  when  any  goods  of  that  value  attached  on  mesne  pro- 
cess or  taken  on  execution  are  claimed  by  a  person  other  than  the 
defendant  in  the  suit,  in  which  they  are  so  attached  or  taken,  such 
owner  or  other  person  may  cause  them  to  be  replevied."  General 
Statutes,  Massachusetts,  c.  143,  §  10. 

1  Part  of  the  opinion  is  omitted. 

2  Per  Lord,  J.,  in  Whitman  v.  Merrill,  125  Mass.  127  :  "A  fallacy  of  the  plaintiff's 
is  the  assumption  that  a  judgment  for  the  plaintiff  in  replevin  necessarily  implies  an 
unlawful  taking  of  the  replevied  goods  by  the  defendant.  This  is  not  so.  Replevin 
lies  for  an  unlawful  detention,  although  the  original  taking  was  lawful."  Badger  v. 
Phinney,  15  Mass.  359  (1819)  ;  Baker  v.  Fales,  16  Mass.  147  (1819);  Marston  v.  Bald- 
win, 17  Mass.  606  (1822) ;  Esson  v.  Tarbell,  9  Cush.  407  (1852)  ;  Lathrop  v.  Bowen, 
121  Mass.  107  (1876);  of.  Bemis  v.  De  Land,  177  Mass.  182  (1900),  accord. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  89 


Section  IV. 
TRESPASS. 


Direct  force  attended 
with  damage  in  re- 
spect  to    plaintiff's 


We  have  thus  far  considered  (1)  an  action  for  the  recov- 
ery of  one's  debt  (almost,  indeed,  for  the  specific  coins  of 
one's  debt);  (2)  for  the  recovery  of  one's  specific  chattels, 
rightfully  taken  and  wrongfully  detained  (or,  in  later  law, 
perhaps,  wrongfully  taken) ;  (3)  for  the  recovery  of  one's 
specific  chattels  (cattle)  wrongfully  taken.  The  first  very 
indirectly  seeks,  the  second  and  third  directly  seek,  per- 
sonal property  of  which  the  plaintiff  is  being  unlawfully 
deforced.  They  have  one  important  thing  in  common  — 
an  ancestry  not  traceable  to  the  criminal  law.  (Though 
replevin  certainly  has  a  criminal  tinge  at  its  origin.)  ^ 

1  "  Just  because  the  power  of  extra-judicial  distress  is  originally  a  justiciary  power, 
the  king's  courts  and  officers  are  much  coucerned  when  it  is  abused.  If  the  distrainor 
will  not  deliver  the  beasts  after  gage  and  pledge  have  beeu  offered,  then  it  is  the 
sheriff's  duty  to  deliver  them.  For  this  purpose  he  may  raise  the  hue,  call  out  the 
whole  power  of  the  county  (posse  comitalus)  aiul  use  all  necessary  force.  '  When  ga"-e 
and  pledge  fail,  peace  fails,'  says  Bracton ;  in  other  words,  the  distraining  lord  is 
beginning  a  war  against  the  state  and  must  be  crushed.  The  offence  that  he  commits 
in  retaining  the  beasts  after  gage  and  pledge  have  been  tendered,  is  known  as  vetitiim 
nnmii,  or  we  de  nam.  It  stands  next  door  to  robbery ;  it  is  so  royal  a  plea,  that  very 
few  of  the  lords  of  franchises  iiave  power  to  entertain  it.  It  is  an  attack  on  that 
judiciary  system  of  which  the  king  is  the  head.  Disputes  about  the  lawfulness  of  a 
distress  were  within  the  sheriff's  competence.  He  could  hear  them  without  being 
ordered  to  do  so  by  royal  writ.  But  when  he  heard  them  he  was  acting,  not  as  the 
pre.sulent  of  the  county  court,  but  as  a  royal  justitiar.  Before  the  end  of  the  thirteenth 
century  the  action  based  upon  the  ree  (1<>  nam  was  losing  some  of  its  terrors;  either 
party  could  easily  procure  its  removal  from  the  county  court  to  the  king's  court. 
Uuder  tlie  name  of  Replegiare  or  Replevin  an  action  was  being  developed  which  was 
proving  itself  to  be  a  convenient  action  for  the  settlement  of  disputes  between  land- 
lord and  tenant;  but  it  seems  to  have  owed  its  vigor,  its  rapidity,  and  therefore  its 
convenience,  to  the  suppo.sition  that  a  serious  offence  had  been  committed  against  the 
king."     2  Pollock  and  Maitland,  575. 


90  CASES   ON   COMMON-LAW   PLEADING. 

The  trespasses,  if  we  except  trespass  quare  dausum  /regit, 
are  of  criminal  ancestry.  We  shall  trace  their  genealogy, 
showing  how  certain  criminal  processes  called  appeals  finally 
evolved  into  indictments  on  the  one  hand,  and  into  actions 
for  civil  torts  on  the  other.  And  finally  we  shall  note  that 
one  essential  of  trespass  is  a  direct  force  to  the  plaintiff's 
lands,  his  chattels,  his  body,  or  his  servant,^  to  be  compen- 
sated by  money  damages.  It  is  interesting  to  note  that  in 
some  of  the  United  States,  certain  trespasses  to  land  are 
to-day  by  statute  crimes  as  well  as  torts. 

HISTOEY   OF   TEESPASS. 

Presented  2  Pollock  and  Maitland,  510. 

r  Felonies  to  be  prosecuted  by  appeal. 
Anciently,    trespasses  ' 
or  wrongful  acts  were  1  Mere  trespasses  giving  rise  to  actions  in 

L  which  no  words  of  felony  were  used. 

„„  ,        ra.  In  civil  actions. 

Later,     oiiences  less     ,    tt                   ^        4.  r.  c       ^      ^          ^ 

„  ,  ]  h.  Upon  presentment  betore  local  courts, 

than       felony  were-<^       tt                     ^        ^   v.  i         ^.i       ^  ■     > 

.  ,     ,        "^  ]  c.  Upon    presentment    betore    tlie    kings 

punished  •     ^• 

'-  ^justices. 

r  (  Treasons. 

-r    ,  ,       ,  oc  I  Upon  indictment.  {  Felonies. 

In  later  days,  onences  I  nr-   ^ 

.  1    '  -<  I.  Misdemeanors, 

were  punishable  jj 

'■  I  Upon    summary    convic- 

Ltion. 

"  '  Trespassed  Transgressio  derivatur  ti  transgrediendo,  because 
it  passeth  that  which  is  right :  Transgresaio  autem  est,  cum  modus 
non  servatur,  nee  metisura :  debet  enini  quilihet  in  suo  facto  modum 
hahere^  et  mensurani.  Nota,  in  the  lowest  and  the  highest  offences 
there  are  no  accessaries,  but  all  are  principals ;  as  in  ryots,  routs, 
forcible  entries,  and  other  transgressions  vi  et  armis,  which  are  the 
lowest  offences  ;  and  so  in  the  highest  offence,  which  is  crimen 
Iceso)  majestatis,  there  be  no  accessaries ;  but  in  felonies  there  be 
accessaries  both  before  and  after."    Coke  upon  Littleton,  57  a. 

Trespass  "became  common  near  the  end  of  Henry  III.'s  reign. 
It  was  a  flexible  action  ;  the  defendant  was  called  upon  to  say  why 

1  In  the  following  pages  separate  treatment  of  trespass  per  quod  servitium  a7nisit 
has  been  deemed  unnecessary.  —  Ed. 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMIXSTER   11.  91 

with  force  and  arms  and  against  the  king's  peace  he  did  some 
wrongful  act.  In  course  of  time  the  precedents  fell  into  three 
great  classes  ;  the  violence  is  done  to  the  body,  the  lands,  the  goods 
of  the  plaintiff."     2  Pollock  and  ]\Iaitland,  1G5. 

A.      The  Genesis  of  Trespass  to  Plaintiff's  Pet-son. 

"  It  is  commonly  known  that  the  early  forms  of  legal  procedure 
were  grounded  in  vengeance.  Modern  writers  have  thought  that 
the  Roman  law  started  from  the  blood  feud,  and  all  the  authorities 
agree  that  the  German  law  begun  in  that  way.  The  feud  led  to  the 
composition,  at  first  optional,  then  compulsory,  by  which  the  feud 
was  bought  off.  The  gradual  encroachment  of  the  composition 
may  be  traced  in  the  Anglo-Saxon  laws,  and  the  feud  was  pretty 
well  broken  up,  though  not  extinguished,  by  the  time  of  William 
the  Conqueror.  The  killings  and  house  burnings  of  an  earlier  day 
became  the  appeals  of  mayhem  and  arson.  The  appeals  de  pace  et 
plagis  and  of  mayhem  became,  or  rather  were  in  substance,  the 
action  of  trespass  which  is  still  familiar  to  lawyers."  Holmes, 
Common  Law,  2. 


DE  APPELO  DE  PACE  ET  PLAGIS. 

Reported  Buactox,  f.  144. 

"  The  appeal  is  made  in  these  words.  '  A.  appeals  B.  that  on  a 
certain  day,  as  he  was  in  the  peace  of  the  lord  the  king  in  such  a 
place,  or  as  he  travelled  in  the  peace  of  the  lord  the  king  on  the 
highway  of  the  lord  the  king  between  such  a  vill  and  such  a  vill, 
on  such  a  day,  before  such  a  feast  or  after  such  a  feast,  in  such  a 
year,  at  such  an  hour,  the  said  B.  came  with  his  force  and  against  the 
peace  of  the  king  in  felony  and  with  a  premeditated  assault,  made 
an  attack  upon  him,  and  inflicted  a  certain  wound  upon  him  in  such 
a  place,  with  such  kind  of  arms,  and  that  he  did  this  wickedly  and 
in  felony,  he  offers  to  prove  against  him  by  his  body,  as  the  court 
thinks  fit.'  And  B.  comes  and  defends  himself  against  having 
broken  the  peace  of  the  king,  and  against  the  felony  and  the 
wound,  and  whatever  is  against  the  peace  of  the  lord  the  king 
(and  the  whole  record  word  for  word,  wliatever  is  imputed  to 
him  and  according  to  what  is  imputed  to  him),  by  his  body 
according  as  the  court  of  the  king  has  thought  fit." 


92  CASES   ON   COMMON-LAW   PLEADING. 

APPEAL   OF  MAYHEM. 

"  Umberd,  who  is  here,  appeals  Maimound  who  is  there,  for  that 
whereas,  etc.,  there  came  this  Maimound  running  in  forethought 
assault  and  with  such  manner  of  arms  cut  off  the  foot  or  the  hand  of 
this  Umberd,  or  with  such  a  staff  struck  him  on  the  head,  so  that 
he  broke  the  crown  of  his  head,  or  with  a  stone  knocked  out  three 
of  his  front  teeth  so  that  he  maimed  him.  This  mayhem  did  he 
feloniously,"  etc.  —  Mirror  (Sel.  Soc),  Book  2,  c.  xix. 

"  Mayhem  is  so  termed  when  any  one  is  rendered  in  any  part  of 
his  body  disabled  from  fighting,  and  chiefly  by  him  whom  he  ap- 
peals, as  if  portions  of  bone  shall  have  been  extracted  from  his 
head,  and  a  great  crust  is  raised.  Likewise  if  a  bone  be  broken,  or 
a  foot,  or  a  hand,  or  a  finger,  or  a  joint  of  a  foot  or  of  a  hand,  or  any 
other  member  be  cut  off,  or  the  nerves  or  some  limb  have  become 
contracted  by  the  wound  so  made,  or  the  fingers  have  been  rendered 
crooked,  or  if  an  eye  has  been  scooped  out,  or  anything  else  has 
been  done  to  the  body,  whereby  a  man  has  been  rendered  less  able 
and  competent  to  defend  himself.  But  what  shall  be  said  of  him 
who  has  his  teeth  broken  ?  if  the  breakage  of  teeth  is  to  be  adjudged 
a  mayhem  ?  To  which  it  is  to  be  answered,  that  everything  whereby 
a  man  is  disabled  from  fighting  as  above  said,  is  a  mayhem."  Bract, 
f.  145  b. 


THE  CHARACTEPJSTICS  OF  TEESPASS  TO  PLAINTIFF'S 

PEESON. 

GREEN  V.   GODDARD. 

In  the  Queen's  Bench.     Between  1703  and  1705. 

Reported  2  Salkeld,  641. 

The  essence  of  trespass. 

Trespass,  assault,  and  battery  laid  on  the  first  of  October,  3  reg. 
The  defendant,  as  to  the  vi  et  armis,  pleaded  no7i  aiL  And  as  to 
the  residue  says,  that  long  before,  namely,  on  the  13th  of  Septem- 
ber, a  stranger's  bull  had  broke  into  his  close,  that  he  was  driving 
him  out  to  put  him  in  the  pound,  and  the  plaintiff  came  into  the 
said  close,  et  manuforti  impedivit  ipsum  ac  taurum  proed.  recussisse 
voluity  et  quod  ad  prceventend.  etc.  ipse  idem  defend,  parvum  fiagel- 
lum  super  querentem  moUiter  imposuit,  quod  est  idem  residuum^ 
etc.^  absque  hoc  quod  cul.  fuit  ad  aliquod  tempus  ante  eundcm  13 
diem.     The  plaintiff  demurred.     Mr.  Eyre,  for  the  plaintiff,  argued 


ACTIONS    BEFORE   THE   STATUTE    OF   WESTMINSTER    II.  93 

that  they  should  have  requested  him  to  go  out  of  the  close.  19 
Hen.  VI.  31 ;  11  Hen.  YI.  23  ;  2  Eo.  Tresp.  547,  548,  549,  and  that 
flagellum  jnolliter  irnponere  is  repugnant.  1  Sid.  4.  M  per  Cur. 
There  is  a  force  in  law,  as  in  every  trespass  quare  clausum  fregit : 
As  if  one  enters  into  my  ground,  in  that  case  the  owner  must  request 
him  to  depart  before  he  can  lay  hands  on  him  to  turn  him  out ;  for 
every  impositio  mammm  is  an  assault  and  battery,  which  cannot  be 
justified  upon  the  account  of  breaking  the  close  in  law,  without  a 
request.  The  other  is  an  actual  force,  as  in  burglary,  as  breaking 
open  a  door  or  gate ;  and  in  that  case  it  is  lawful  to  oppose  force 
to  force ;  and  if  one  breaks  down  the  gate,  or  comes  into  my  close 
vi  et  armis,  I  need  not  request  liira  to  be  gone,  but  may  lay  hands 
on  him  immediately,  for  it  is  but  returning  violence  with  violence  : 
So  if  one  comes  forcibly  and  takes  away  my  goods,  I  may  oppose 
him  without  any  more  ado,  for  there  is  no  time  to  make  a  request.^ 


UNDERWOOD  v.    HEWSON. 

In  the  King's  Bench.     1724. 

Reported  1  Strange,  596. 

The  defendant  was  uncocking  a  gun,  and  the  plaintiff  standing  to 
see  it,  it  went  off  and  wounded  him :  and  at  the  trial  it  was  held 
that  the  plaintiff  might  maintain  trespass.    Strange,  i^ro  defendente. 

COLE   V.   TURNER. 
Before  Holt,  C.  J.,  at  Nisi  Prius.     1704. 
Reported  6  Modekx,  149. 
Battery  defined. 

Upon  evidence  in  trespass  for  assault  and  battery: 
Holt,  C.  J. ,  declared,  1.  That  the  least  touching  of  another  in 
anger  is  a  battery. 

2.  If  two  or  more  meet  in  a  narrow  passage,  and  without  any 
violence  or  design  of  harm,  the  one  touches  the  other  gently,  it  will 
be  no  battery. 

3.  If  any  of  them  use  violence  against  the  other,  to  force  his 
way  in  a  rude  inordinate  manner,  it  will  be  a  battery ;  or  any 
struggle  about  the  passage  to  that  degree  as  may  do  hurt,  will  be  a 
battery.  Vide  Bro.  Tresp.  236,  336  ;  7  Edw.  IV.  26 ;  22  Ass.  60  ;  3 
Hen.  IV.  9. 

1  Part  of  the  case,  not  here  relevant,  is  omitted. 


94  CASES   ON   COMMON-LAW   TLEADIXG. 

Note.  It  was  in  action  of  battery  by  husband  and  wife,  for  a 
battery  upon  the  husband  and  wife,  ad  damnum  ipsorum ;  and 
though  the  plaintiff  had  a  verdict,  yet  the  Chief  Justice  said,  he 
should  never  have  judgment :  and  the  judgment  was  after  arrested 
above  upon  that  exception. 

STEPHENS   V.  MYERS. 
At  Nisi  Prius.     1830. 
Reported  4  Carkington  and  Payne,  349. 
Assault  defined. 

Assault.  The  declaration  stated,  that  the  defendant  threatened 
and  attempted  to  assault  the  plaintiff.     Plea  —  Not  guilty. 

It  appeared,  that  the  plaintiff  was  acting  as  chairman,  at  a  parish 
meeting,  and  sat  at  the  head  of  a  table,  at  which  table  the  defend- 
ant also  sat,  there  being  about  six  or  seven  persons  between  him 
and  the  plaintiff.  The  defendant  having,  in  the  course  of  some 
angry  discussion,  which  took  place,  been  very  vociferous,  and  inter- 
rupted the  proceedings  of  the  meeting,  a  motion  was  made,  that  he 
should  be  turned  out,  which  was  carried  by  a  very  large  majority. 
Upon  this,  the  defendant  said,  he  would  rather  pull  the  chairman 
out  of  the  chair,  than  be  turned  out  of  the  room ;  and  immediately 
advanced  with  his  fist  clenched  toward  the  chairman,  but  was 
stopped  by  the  church-warden,  who  sat  next  but  one  to  the  chair- 
man, at  a  time  when  he  was  not  near  enough  for  any  blow  he  might 
have  meditated  to  have  reached  the  chairman ;  but  the  witnesses 
said,  that  it  seemed  to  them  that  he  was  advancing  with  an  inten- 
tion to  strike  the  chairman. 

Spankie,  Serjt.,  for  the  defendant,  upon  this  evidence,  contended, 
that  no  assault  had  been  committed,  as  there  was  no  power  in  the 
defendant,  from  the  situation  of  the  parties,  to  execute  his  threat  — 
there  was  not  a  present  ability  —  he  had  not  the  means  of  executing 
his  intention  at  the  time  he  was  stopped. 

Tindal,  C.  J.,  in  his  summing  up,  said  :  It  is  not  every  threat, 
when  there  is  no  actual  personal  violence,  that  constitutes  an 
assault,  there  must,  in  all  cases,  be  the  means  of  carrying  the  threat 
into  effect.  The  question  I  shall  leave  to  you  will  be,  whether  the 
defendant  was  advancing  at  the  time,  in  a  threatening  attitude,  to 
strike  the  chairman,  so  that  his  blow  would  almost  immediately 
have  reached  the  chairman,  if  he  had  not  been  stopped ;  then,  though 
he  was  not  near  enough  at  the  time  to  have  struck  him,  yet  if  he 
was  advancing  with  that  intent,  I  think  it  amounts  to  an  assault 


ACTIONS   BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  95 

in  law.  If  he  was  so  advancing,  that,  within  a  second  or  two  of 
time,  he  would  have  reached  the  plaintiff,  it  seems  to  me  it  is  an 
assault  in  law.  If  you  think  he  was  not  advancing  to  strike  the 
plaintiff,  then  only  can  you  find  your  verdict  for  the  defendant ; 
otherwise  you  must  find  it  for  the  plaintiff,  and  give  him  such 
damages,  as  you  think  the  nature  of  the  case  requires. 

Verdict  for  the  plaintiff.     Damages,  Is. 

Andrews,  Serjt.,  and  Steer,  for  the  plaintiff. 
Spankie,  Serjt.,  and  Thesiger,  for  the  defendant. 


TURBERVELL  v.    SAVADGE. 

In  the  King's  Bench.     16G9.  \ 

Reported  2  Keble,  545. 

Dictum.     The  intent  may  be  material  in  trespass. 

In  trespass  of  assault,  battery,  and  wounding,  the  defendant 
pleaded  the  plaintiff  began  first,  and  the  stroke  he  received,  whereby 
he  lost  his  eye,  was  on  his  own  assault,  and  in  defence  of  the  de- 
fendant ;  and  on  trial  at  bar  now  by  the  evidence  it  appeared  the 
plaintiff  threatened  the  defendant,  and  said,  were  it  not  Assize  time, 
he  would  tell  more  of  his  mind,  which  was  said  bending  his  fist,  and 
with  his  hand  on  his  sword,  yet  per  Curiam  this  is  no  assault,  as  it 
would  be  without  that  declaration ;  but  it  was  farther  sworn  the 
plaintiff  with  his  elbow  punched  the  defendant,  which  if  done  in 
earnest  discourse,  and  not  with  intent  of  violence,  is  no  assault,  nor 
then  is  it  a  justification  of  battery  after  retreat,  as  Pliineas  Andrew's 
case,  and  the  jury,  not  believing  the  defendant,  found  ^ro  plaintiff, 
and  £500  damages.^ 

MITCHIL   V.    ALESTREE. 

In  the  King's  Bench.     1676. 

Reported  I  Ventris,  295. 

An  injury  wliich  liappens  against  the  defendant's  will  may  be  a  trespass. ^ 

In  an  action  upon  the  case  brought  against  the  defendant,  for 

that  he  did  ride  an  horse  into  a  place  called  Lincoln's  Inn  Fields, 

a  place  much  frequented  by  the  king's  subjects,  and  unapt  for  such 

1  Sed  (pmre.     Cf.  Scott  v.  Shepard,  reported  post. 
*  Cf.  Gibbons  v.  Pepper,  reported  post. 


96  CASES    ON   COMMON-LAW    PLEADING. 

purposes)  for  the  breaking  and  taming  of  him,  and  that  the  horse 
was  so  unruly,  that  he  broke  from  the  defendant,  and  ran  over  the 
plaintiff,  and  grievously  hurt  him,  to  his  damage,  etc. 

Upon  not  guilty  pleaded,  and  a  verdict  for  the  plaintiff,  it  was 
moved  by  Simpson  in  arrest  of  judgment,  that  here  is  no  cause  of 
action ;  for  it  appears  by  the  declaration,  that  the  mischief  which 
happened  was  against  the  defendant's  will,  and  so  damnum  absque 
injuria;  and  then  not  shown  what  right  the  king's  subjects  had  to 
walk  there ;  and  if  a  man  digs  a  pit  in  a  common  into  which  one 
that  has  no  right  to  come  there,  falls  in,  no  action  lies  in  such  case. 

Curia  contra,  it  was  the  defendant's-  fault,  to  bring  a  wild  horse 
into  such  a  place  where  mischief  might  probably  be  done,  by  reason 
of  the  concourse  of  people.  Lately,  in  this  court  an  action  was 
brought  against  a  butcher,  who  had  made  an  ox  run  from  his  stall 
and  gored  the  plaintiff ;  and  this  was  alleged  in  the  declaration  to 
be  in  default  of  penning  of  him. 

Wylde  said :  If  a  man  hath  an  unruly  horse  in  his  stable,  and 
leaves  open  the  stable-door,  whereby  the  horse  goes  forth  and  does 
mischief ;  an  action  lies  against  the  master. 

Twisden.  If  one  hath  kept  a  tame  fox,  which  gets  loose  and 
grows  wild,  he  that  kept  him  before  shall  not  answer  for  the  dam- 
age the  fox  doth  after  he  hath  lost  him,  and  he  hath  resumed  his 
wild  nature.  Vide  Hobart's  Eeports,  134.  The  case  of  Weaver 
and  Ward.     Judgment  for  the  plaintiff.     2  Lev.  172. 


WEAVER  V.  WARD. 

In  the  King's  Bench.     1616. 

Reported  Hobart,  134. 

Trespass,  unlike  felony,  need  not  be  done  animo  felonico . 

Weaver  brought  an  action  of  trespass  of  assault  and  battery 
against  Ward.  The  defendant  pleaded  that  he  was  amongst  others, 
by  the  commandment  of  the  lords  of  the  council,  a  trained  soldier 
in  London,  of  the  band  of  one  Andrews,  captain ;  and  so  was  the 
plaintiff;  and  that  they  were  skirmishing  with  their  muskets 
charged  with  powder  for  their  exercise  in  re  militari,  against  another 
captain  and  his  band ;  and  as  they  were  so  skirmishing,  the  de- 
fendant, casualiter  et  per  infortunium  et  contra  voluntatem  sucan, 
in  discharging  his  piece,  did  hurt  and  wound  the  plaintiff;  which 
is  the  same,  etc.,  absque  hoc,  that  he  was  guilty  aliter  sive  alio  modo. 
And  upon  demurrer,  by  the  plaintiff,  judgment  was  given  for  him ; 


ACTIONS   BEFORE   THE   STATUTE   OF   WESTMINSTER   II.  97 

for  though  it  were  agreed,  that  if  men  tilt  or  tourney  in  the  presence 
of  the  king,  or  if  two  masters  of  defence  playing  their  prizes  kill 
one  another,  that  this  shall  be  no  felony  ;  or  if  a  lunatic  kill  a  man, 
or  the  like;  because  felony  must  be  done  animo felonico ;  yet  in 
trespass,  which  tends  only  to  give  damages  according  to  hurt  or 
loss,  it  is  not  so ;  and  therefore  if  a  lunatic  hurt  a  man,  he  shall  be 
answerable  in  trespass,  (for  this  is  in  the  nature  of  an  excuse,  and 
not  of  justification,  joroM^  ei  6ewe  licuit,^  except  it  may  be  judged 
utterly  without  his  fault ;  as  if  a  man  by  force  take  my  hand  and 
strike  you ;  or  if  here  the  defendant  had  said  that  the  plaintiff  ran 
cross  his  piece  when  it  was  discharging ;  or  had  set  forth  the  case 
with  the  circumstances,  so  as  it  had  appeared  to  the  court  that  it 
had  been  inevitable,  and  that  the  defendant  had  committed  no 
negligence  to  give  occasion  to  the  liurt. 

(b)    The  Genesis  of  Trespass  to  Plaintiff* s  Goods. 

In  the  very  early  English  law,  "  The  typical  action  for  the  re- 
covery of  a  movable  is  a  highly  penal  action  ;  it  is  an  action  against 
a  thief,  or  at  any  rate  it  is  an  action  which  aims  at  the  discovery 
and  punishment  of  a  thief  as  well  as  at  the  restitution  of  stolen 
goods.  An  action  we  call  it,  but  it  is  a  prosecution,  a  prosecution 
in  the  primary  sense  of  that  word,  a  pursuit,  a  chase ;  a  great  part 
of  the  legal  procedure  takes  yjlace  before  any  one  has  made  his  way 
to  a  court  of  law.  My  cattle  have  been  driven  off;  I  must  follow 
the  trail;  it  is  the  duty  of  my  neighbors  to  assist  me,  to  ride  with 
me.  If  we  catch  the  marauder  still  driving  the  beasts  before  him,  we 
take  him  as  a  'hand  having'  thief  and  he  is  dealt  with  in  an  ex- 
ceedingly summary  fashion  ;  '  he  cannot  deny '  the  theft.  The  prac- 
tice of  ear-marking  or  branding  cattle,  the  legal  duty  that  I  am  under 
of  publicly  exposing  to  the  view  of  my  neighbors  whatever  cattle  I 
have,  makes  it  a  matter  of  notoriety  that  these  beasts,  which  this 
man  is  driving  before  him,  have  been  taken  from  me.  Even  if  we 
cannot  catch  a  thief  in  the  act,  the  trail  is  treated  as  of  great  im- 
portance. If  it  leads  into  a  man's  land,  he  must  show  that  it  leads 
out  again,  otherwise  it  will  '  stand  instead  of  a  foreoath ' ;  it  is  an 
accusing  fact.  If  the  possessor  has  no  unbroken  trail  in  his  favor, 
then  when  he  discovers  the  thing,  he  lays  his  hand  upon  it  and 
claims  it.  He  declares  the  ox  to  be  his  and  calls  upon  the  pos- 
sessor to  say  how  he  came  by  it.  The  possessor  has  to  give  up  the 
thing  or  to  answer  this  question.  He  may  perhaps  assert  that  the 
beast  is  his  by  birth  and  rearing;  a  commoner  answer  will  be  that 
he  acquired  it  from  a  third  person  whom  he  names.     Then  the  pur- 

7 


98  CASES    ON    COMMON-LAW   PLEADING. 

suer  with  his  left  hand  grasping  one  of  the  beast's  ears,  and  his 
right  upon  a  relic  or  a  sword,  swears  that  the  beast  is  his  and  has 
been  stolen  from  him,  and  the  possessor  with  his  left  hand  grasp- 
ing the  other  ear  swears  that  he  is  naming  the  person  from  whom 
he  acquired  it. 

"  Now  at  length  there  may  be  proceedings  before  a  court  of  law. 
The  possessor  must  produce  this  third  person  before  the  court ;  he 
has  vouched  a  warrantor  and  must  find  him.  If  this  vouchee  ap- 
pears and  confesses  the  warranty,  then  the  beast  is  delivered  over 
to  him  and  the  accusation  is  made  against  him.  He  can  vouch 
another  warrantor,  and  so,  by  following  backwards  the  course  along 
which  the  beast  has  passed,  we  may  come  at  length  to  the  thief. 
...  If  the  possessor  can  name  no  warrantor,  it  is  still  possible  that 
he  should  protect  himself  against  the  charge  of  theft  by  showing 
that  he  purchased  the  thing  in  open  market  before  the  proper  wit- 
nesses ;  but  he  will  have  to  surrender  that  thing  ;  it  is  not  his  though 
he  bought  it  honestly.  .  .  . 

"  In  the  thirteenth  century  this  ancient  procedure  was  not  yet 
obsolete  ;  but  it  was  assuming  a  new  form,  that  of  the  appeal  of  lar- 
ceny.    Bracton  called  it  the  actio  furti.  .  .  . 

"  Now  this  old  procedure,  which  is  Glanvill's  petitio  rei  ex  cansa 
furtiva  and  Bracton's  actio  furti,  underwent  a  further  change.  The 
appellee  against  whom  a  charge  of  larceny  was  brought  was  ex- 
pected, if  he  would  not  fight,  to  put  himself  upon  his  country.  This 
we  may  regard  as  a  concession  to  appellees.  The  accused  had  no 
loncer  to  choose  between  some  two  or  three  definite  lines  of  de- 
fence ;  he  could  submit  his  case  as  a  whole  to  the  verdict  of  his 
neighbors,  and  hope  that  for  one  reason  or  another  —  which  reason 
they  need  not  give  —  they  would  acquit  him.  The  voucher  of  a 
warrantor  disappeared,  and  with  it  the  appellor's  chance  of  recover- 
ing his  goods  from  a  hand  which  was  not  that  of  the  thief.  Men 
were  taking  more  notice  than  they  once  took  of  the  psychical  ele- 
ment of  theft,  the  dishonest  intention,  and  it  was  no  longer  to  be 
tolerated  that  a  burden  of  disproving  theft  should  be  cast  upon  one 
against  whom  no  more  could  be  asserted  than  that  he  was  in  pos- 
session of  goods  that  had  been  taken  from  another.  The  appeal 
had  become  simply  a  criminal  prosecution ;  it  failed  utterly  if  the 
appellee  was  not  convicted  of  theft.  If  he  was  convicted,  and  the 
stolen  goods  had  been  seised  by  the  king's  officers,  the  appellor 
misht,  as  of  old,  recover  them  ;  a  writ  of  restitution  would  be  issued 
in  his  favor,  if  he  proved  that  he  made  '  fresh  suit.'  But  more  and 
more  this  restitution  is  regarded  as  a  mere  subordinate  incident  in 
the  appeal,  and  when  it  is  granted,  it  is  granted  rather  as  a  reward 


ACTIONS    BEFOKE    THE    STATUTE    OF    WESTMINSTER   II.  99 

and  a  favor  than  a,s  a  matter  of  strict  right.  The  man  who  has 
been  forward  in  the  prosecution  of  a  malefactor  deserves  well  at 
the  hands  of  the  State ;  we  reward  him  by  giving  him  his  own.  In 
order  to  explain  this  view  of  the  matter  we  must  notice  that  our  law 
of  forfeiture  has  been  greedy.  The  felon  forfeits  his  chattels  to  the 
king;  he  forfeits  what  he  has;  he  forfeits  even  'that  which  he 
seemeth  to  have.'  If  the  thief  is  indicted  and  convicted,  the  king 
will  get  even  the  stolen  goods ;  if  he  is  appealed  then  the  appellor 
will  perhaps,  if  he  has  shown  himself  a  diligent  subject,  receive  a 
prize  for  good  conduct.  Men  will  begin  to  say  that  the  thief  has 
'  property '  in  the  stolen  goods  and  that  this  is  the  reason  why  the 
king  takes  them.  As  a  matter  of  history  we  believe  this  to  be  an 
inversion  of  logic:  —  one  of  the  reasons  why  the  thief  is  said  to 
have  'property'  in  those  goods  is  that  the  king  has  acquired  a 
habit  of  taking  them  and  refusing  to  give  them  up. 

"  But  of  course  more  than  this  must  be  said  before  we  can  under- 
stand the  ascription  of  property  to  a  thief  or  other  wrongful  taker. 
So  long  as  the  old  practice  of  bringing  an  actio  furti  Rgaiinst  the  third 
hand  was  in  use,  such  an  ascription  would  have  been  impossible. 
As  already  said,  that  practice  went  out  of  use.  The  king's  court 
was  putting  something  in  its  place,  and  yet  not  exactly  in  its  place, 
namely,  a  writ  of  trespass.  This  became  common  near  the  end  of 
Henry  III.'s  reign.  It  was  a  flexible  action ;  the  defendant  was 
called  upon  to  say  why  with  force  and  arms  and  against  the  king's 
peace  he  did  some  wrongful  act.  In  the  course  of  time  the  prece- 
dents fell  into  three  great  classes :  the  violence  done  to  the  body,  the 
lands,  the  goods  of  the  plaintiff.  The  commonest  interference  with 
his  goods  is  that  of  taking  and  carrying  them  away ;  a  well-marked 
sub-form  of  trespass,  is  trespass  de  bonis  asportatis.  If,  however,  we 
look  back  at  the  oldest  precedents  we  shall  see  that  the  destruction 
or  asportation  of  goods  was  generally  complained  of  as  an  incident 
which  aggravated  the  invasion  of  land,  the  entry  and  breach  of  a 
close,  and  this  may  give  us  a  clew  when  we  explore  the  remedy 
which  this  action  gives. 

"  It  is  a  semi-criminal  action.  The  procedure  against  a  contu- 
macious defendant  aims  at  his  outlawry.  The  convicted  defendant 
is  imprisoned  until  he  makes  fine  with  the  king.  He  also  is  con- 
demned to  pay  damages.  The  action  is  not  recuperatory  ;  it  is  not 
rei  persecutoria.  ...  To  have  made  the  action  recuperatory  (rei 
pe.rsecutoria)  in  the  case  of  chattels,  would  have  been  an  anomaly ; 
in  Henry  III.'s  day  it  might  even  have  been  an  improper  interference 
with  the  old  actio  furti ;  but  at  any  rate  it  would  have  been  an 
anomaly.     Therefore  the  man  whose  goods  have  been  taken  away 


100  CASES   ON    COMMON-LAW    PLEADING. 

from  him  can  by  writ  of  trespass  recover,  not  his  goods,  but  a  pecu- 
niary equivalent  for  them ;  and  the  writ  of  trespass  is  beginning  to 
be  his  one  and  only  remedy  unless  he  is  hardy  enough  to  charge 
the  defendant  with  larceny. 

"This  is  not  all.  Whatever  subsequent  ages  may  think,  an  action 
of  trespass  de  bonis  asportatis  is  not  an  action  that  should  be  brought 
against  the  third  hand,  against  one  who  has  come  to  the  goods  through 
or  under  the  wrongful  taker,  or  against  one  who  has  wrongfully 
taken  them  from  him.  The  man  who  has  bought  or  hired  goods 
from  the  trespasser,  how  has  he  broken  the  king's  peace  and  why 
should  he  be  sent  to  jail .?  As  to  the  second  trespasser,  the  action 
de  honis  asportatis  would  have  fallen  out  of  touch  with  its  impor- 
tant and  influeutial  neighbor  the  action  de  cluuso  fracto,  if  it  could 
have  been  brought  against  any  one  but  the  original  wrong-doer.  If 
I  am  disseised  of  land  and  any  one  disseises  my  disseisor,  a  writ  of 
trespass  is  not  my  remedy  against  him ;  I  want  land,  not  money, 
and  a  proper  action  is  provided  for  me.  It  would  be  an  anomaly 
to  suffer  the  writ  of  trespass  to  do  for  the  disseisee  of  a  chattel 
what  it  will  not  do  for  the  disseisee  of  land.  The  mischief  is  that 
the  two  cases  are  not  parallel.  The  disseisee  of  land  has  plenteous 
actions  though  the  writ  of  trespass  be  denied  him,  while  the  dis- 
seisee of  a  chattel,  when  the  barbaric  actio  furti  was  falling  into 
oblivion,  had  none.  And  so  we  arrive  at  this  lamentable  result 
which  prevails  for  a  while  :  —  If  my  chattel  be  taken  from  me  by 
another  wrongfully  but  not  feloniously,  then  I  can  have  no  action 
against  any  third  person  who  at  a  subsequent  time  possesses  it  or 
meddles  with  it ;  my  one  and  only  action  is  an  action  of  trespass 
against  the  original  taker."  2  Pollock  and  Maitland,  156-158, 
163-166. 

APPEAL   OF   LAECENY  (Actio  Furti). 

"  Athelwold,  who  is  here,  appeals  Osketel,  who  is  there,  for  that 
whereas  this  Athelwold  had  his  goods,  and  in  particular,  etc., 
these  goods  he  (Osketel)  stole  from  him  larcenously  as  a  larcener, 
etc."     Mirror  (Sel.  Soc),  Book  2,  c.  xvi. 

APPEALS   OF   EOBBERY. 

"Osmund,  who  is  here,  appeals  Saxmund,  who  is  there,  for  that 
whereas  this  Osmund  had  a  horse  of  such  a  price,  there  came  this 
Saxmund  and  robbed  him  of  the  horse  on  such  a  day,  etc.,  or  of 
so  much  money,  or  of  such  a  garment  of  such  a  price,  feloniously, 


I 


ACTIONS    BEFORE   THE   STATUTE   OF   WESTMINSTER    II.  101 

etc.,  or  of  his  two  oxen  of  such  a  price,  or  of  such  other  kind  of 
chattels  of  such  a  price,  etc.,  or  received  the  said  goods  thus  taken 
in  robbery,  or  was  aiding  or  otherwise  consenting."  Mirror  (Sel. 
Soc),  Book  2,  c.  xvi. 

("In  these  actions,  two  rights  may  be  concerned  —  the  right  of 
possession,  as  is  the  case  where  a  thing  is  robbed  or  stolen  from 
the  possession  of  one  who  had  no  right  of  property  in  it  (for  in- 
stance where  the  thing  has  been  lent,  bailed,  or  let) ;  and  the  right 
of  property,  as  is  the  case  where  a  thing  is  stolen  or  robbed  from 
the  possession  of  one  to  whom  the  property  in  it  belongs.")  Mir- 
ror (Sel.  Soc),  Book  2,  c.  xvi. 

" '  John,  who  is  here,  appeals  Peter,  who  is  there,  that  whereas  the 
same  John  on  such  a  day  in  such  a  year  had  such  a  horse,  which 
he  kept  in  his  stable,'  or  elsewhere  in  such  certain  place,  '  the  same 
Peter  there  came,  and  the  same  horse  feloniously  as  a  felon  stole 
from  him,  and  took  and  led  away  against  the  peace,  and  that  this 
he  wickedly  did,  the  same  John  offers  to  prove  by  his  body  as  the 
court  shall  award  that  he  ought  to  do  it.' "  ^  Brittou,  96.  Nichols,  Ed. 


TPtESPASS   HOW  FAR  THE   DISSEISIN   OF  A  CHATTEL. 

Clearly  to  understand  the  ancient  action  of  trespass  for 
the  asportation  of  goods,  we  must  know  something  of  the 
whole  scheme  of  remedies  for  the  disseisin  of  chattels.  The 
action  of  trespass  de  bonis  asportatis  is,  as  has  been  observed, 
of  criminal  origin.  The  barbarous  actio  furti  of  ancient 
times,  and  the  appeals  of  larceny  and  robbery  of  more 
recent  date,  are  its  ancestors.  As  in  the  case  of  trespass 
de  bonis  asportatis,  and  in  the  cases  of  the  actio  furti  and 
the  appeals,  the  fundamental  wrong  was  a  taking  without 
right  of  the  plaintiff's  chattel,^  —  a  disseisin  of  the  plaintiff's 
chattel.^  "  From  the  days  of  Glanvil[l]  almost  to  the  time 
of   Littleton,  '  seisin  '  and  '  possession '  were  synonymous 

1  "If  Peter  pleads  that  the  liorse  was  liis  own,  and  that  he  took  him  as  his  own, 
and  as  his  chattel  lost  out  of  his  possession,  and  can  prove  it,  the  appeal  sliall  be 
changed  from  felony  to  the  nature  of  a  trespass." 

■-  "  ()ri|^inally  any  takin_<]^  without  right,  like  killing  by  accident,  was  felonious.  In 
Bracton's  time,  if  not  earlier,  the  animus  fin  audi  was  essential  to  a  felony.  Bractou, 
f.  136  b."     Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  28,  n. 

3  Ibid.  23,  28. 


102  CASES    ON    COMMON-LAW    PLEADING.  ^ 

terms,  and  were  applied  alike  to  chattels  and  land.  In  a 
word,  seisin  was  not  a  purely  feudal  notion."  ^  '■  The  word 
'  disseisin/  it  is  true,  was  rarely  used  with  reference  to  per- 
sonalty.^ Only  three  illustrations  of  such  use  have  been 
found.^  ...  In  substance,  however,  the  law  of  disseisin 
was  common  to  both  realty  and  personalty." 

The  Disseisin  of  Land. 

"  A  disseisor  of  land,  it  is  well  known,  gains  by  his  tort  an  estate 
in  fee  simple.  '  If  a  squatter  wrongfully  encloses  a  bit  of  waste 
land  and  builds  a  hut  on  it,  and  lives  there,  he  acquires  an  estate 
in  fee  simple  in  the  land  which  he  has  enclosed  ...  He  is  not  a 
mere  tenant  at  will,  nor  for  years,  nor  for  life,  nor  in  tail ;  but  he 
has  an  estate  in  fee  simple.  He  has  seisin  of  the  freehold  to  him 
and  his  heirs.'"* 

The  Disseisin  of  Chattels. 

"Compare  with  this  the  following  from  Fitzherbert :  'Note  if 
one  takes  my  goods,  he  is  seised  now  of  them  as  of  his  own  goods, 
adjudged  by  the  whole  court.'  "  ° 

The  Effect  upon  Title  of  Trespass  to  Goods. 

(a)    The  Ancient  Rule. 

This  prepares  us  for  the  following  statement,  which  is  startling : 
"  Trespass  in  goods  is  the  wrongful  taking  of  them  with  pretence 
of  title,  and  therefore  altereth  the  propertie  of  those  goods"  Finch, 
Law,  Book  III.  c.  6. 

Que  Sera  Dit  Le  Trespasser. 
2  Roll.   Abr.  Trespass,  553. 
Trespass  anciently  altered  the  property  in  goods. 

1.  If  my  servant  without  my  notice  puts  my  beasts  on  the  land 
of  another,  my  servant  is  the  trespasser  and  not  I ;  for  by  the 
voluntary  putting  of  the  animals  there  without  my  assent,  he  gains 

1  Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  23. 

2  Ibid.  24. 

3  Ibid.  24;  1  Rot.  Cur.  Reg.  451 ;  1  Stat,  of  Realm,  230,  or  Bract,  f.  136  b;  Y.  B. 
14  Edw.  IL  409. 

4  Ames,  l)is.seisia  of  Chattels,  3  Harv.  L.  Rev.  23,  citJDg  the  quoted  matter  from,, 
Williams,  Seisin,  7.     See  also  Leach  v.  Jay,  9  Ch.  Div.  42,  44,  45. 

^  See  Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  24. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  103 

a  special  property  for  the  time,  and  tlius  for  this  purpose  they  are 
his  animals.     12  Hen.  VII.  Kell.  3  b. 

2.  But,  it  seems,  if  my  wife  puts  my  beasts  on  the  land  of  an- 
other, I  myself  am  the  trespasser,  for  that  my  ^  wife  is  not  able  to 
gain  a  property  from  me. 

"The  legal  effects  of  the  disseisin  of  chattels  are  most  vividly 
seen  by  looking  at  the  remedies  for  a  wrongful  taking.  The  right 
of  recaption  was  allowed  only  fingrante  delicto.  This  meant  in 
Brittoii's  time  the  day  of  the  taking.  If  the  owner  retook  his  goods 
afterwards,  he  forfeited  them  for  his  '  usurpation.'  If  the  taking 
was  felonious,  the  despoiled  owner  might  bring  an  appeal  of  larceny, 
and  by  complying  with  certain  conditions  [stated  below  in  cases 
there  presented]  obtain  restitution  of  the  stolen  chattel.  But  such 
was  the  rigor  and  hazard  of  these  conditions,  that  from  the  middle 
of  the  thirteenth  century  the  appeal  was  largely  superseded  by  the 
new  action  of  trespass.'^  If  the  taking  was  not  criminal,  trespass 
was  for  generations  the  only  remedy. 

"  Trespass,  however,  was  a  purely  personal  action ;  it  sounded 
only  in  damages.  The  wrongful  taking  of  chattels  was,  therefore,  a 
more  effectual  disseisin  than  the  ouster  from  land.  The  dispossessed 
owner  of  land,  as  we  have  seen,  could  always  recover  possession  by 
an  action.  Though  deprived  of  the  res,  he  still  had  a  right  in  rem. 
The  disseisor  acquired  only  a  defeasible  estate.  One  whose  chattel 
had  been  taken  from  him,  on  the  other  hand,  having  no  means  of 
recovering  it  by  action  ^  [Replevin  being  anciently  confined  to  cases 
of  wrongful  distress  and  detinue  to  cases  of  wrongful  detainer  after 
rightful, taking,  not  only  lost  the  res,  but  had  no  right  in  rem. 
The  disseisor  gained  by  his  tort  both  the  possession  and  the  right 
of  possession ;  in  a  word,  the  absolute  property  in  the  chattel 
taken. 

"  What  became  of  the  chattel  afterwards,  therefore,  was  no  con- 

1  The  word  "  le,"  which  occurs  in  the  original,  should  be  "  mon  "  to  accord  with 
the  first  use  of  the  phrase,  "  Mes  semble  si  nion  feme,"  etc. 

2  "  A  case  of  the  year  1199  (2  Hot.  Cur.  Rej;.  34)  seems  to  be  the  earliest  reported 
instance  of  an  action  of  trespass  in  the  royal  courts.  Only  a  few  cases  are  recorded 
during  the  next  fifty  years.  But  about  1250  the  action  came  suddenly  into  great 
popularity.  In  the  Abbreviafo  Plaritonim,  twenty-five  cases  are  given  of  the  single 
year  1252-1253.  We  may  infer  that  that  writ,  which  had  before  been  granted  as  a 
special  favor,  became  at  that  time  a  writ  of  course.  In  Britton  (f.  49),  pleaders  are 
advised  to  sue  iu  tre:^pass,  rather  than  by  appeal,  in  order  to  avoid  '  In  perilomte  aren- 
tiire  dfi  batayles.'  Trespass  in  the  popular  courts  of  the  hundred  and  county  was 
doubtless  of  far  greater  antiquity  tlxin  the  same  action  in  the  Curia  Rpf/ix.  Several 
cases  of  the  reign  of  Henry  I.  are  collected  in  Bigelow,  Placita  Anglo-Normanuica, 
89,  89,  98,  102,  127."     Ames.  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  at  29. 

3  Y.  B.  21  Edw.  IV.  74-76. 


104  CASES    ON    COMMON-LAW    PLEADING. 

cern  of  the  victim  of  the  tort.  Accordingly,  one  need  not  be 
surprised  at  the  following  charge  given  by  Brian,  C.  J.,  and  his 
companions  to  a  jury  in  1486.  '  If  one  takes  my  horse  vi  et  armis 
and  gives  it  to  S..  or  S.  takes  it  with  force  and  arms  from  him  who 
took  it  from  nie,  in  this  case  S.  is  not  a  trespasser  to  me,  nor  shall 
I  have  trespass  against  him  for  the  horse,  because  the  possession 
was  out  of  me  by  the  first  taking ;  then  he  was  not  a  trespasser  to 
me,  and  if  the  truth  be  so,  find  the  defendant  not  guilty.'  Brook 
adds  this  gloss :  '  For  the  first  offender  has  gained  the  property  by 
the  tort."'i 

The  Effect  upon  Title  of  Trespass  to  Goods. 

(b)    The  3foder?i  Rule. 

"  To-day,  as  every  one  knows,  neither  a  trespasser,  nor  one  taking 
or  buying  from  him,  nor  the  vendor  of  a  bailee,  either  with  or  with- 
out delivery  by  the  latter,  acquires  the  absolute  property  in  the 
chattel  taken  or  bailed.  The  disseisee  of  goods,  as  well  as  the  dis- 
seisee of  land,  has  a  right  in  rem.  The  process  by  which  the 
right  in  personam  has  been  transformed  into  a  real  right  may  be 
traced  in  the  expansion  of  the  writs  of  replevin  and  detinue." 
Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Eev.  30. 

Trespass  and  the  Appeal  of  Robbery  Compared. 

It  will  not  be  uninteresting,  as  we  approach  the  parting 
of  the  ways  between  trespass  the  tort  and  trespass  the 
crime,  to  look  for  a  moment  at  the  crime. 

B.  has  taken  A.'s  chattel  with  force  and  arms.  He  has 
committed  a  wrong  against  A.  and  another  contra  paceini 
regis.  In  developed  law,  A.'s  wrong  is  remedied  by  a 
civil  action,  de  bonis  asportatis ;  the  king's  wrong,  by  in- 
dictment for  robbery  or  larceny,  as  the  case  may  be. 

But  we  cannot  understand  the  history  of  trespass  if  we 
deal  simply  with  developed  law.  The  civil  action  of  tres- 
pass to  chattels  gave,  to  the  successful  plaintiff,  not  the 
specific  chattel,  but  money  damages  ;  the  appeal  of  robbery, 
if  certain  conditions  were  fulfilled,  would  give  him  the  very 
chattel  wrongfully  wrested  from  his  hand.  What  some  of 
those  conditions  were,  let  us  here  inquire. 

1  Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  28,  29. 


ACTIONS   BEFORE   THE   STATUTE   OF    WESTMINSTER   II.  10^ 


EECOVEEY  OF  CHATTELS  BY  APPEAL  OF  EOBBEEY. 

(a)    Fresh  Pursuit. 
EOPER'S    CASE. 

In  Queen's  Bench.     1587. 
Reported  2  Leonakd,  108. 

Eoper  was  robbed  by  Smith,  and  within  a  week  after  the  rob- 
bery he  preferred  an  indictment  against  him,  and  within  a  month 
after  the  robbery  he  sued  an  appeal  against  Smith,  and  prosecuted 
the  same  until  he  was  outlawed ;  and  thereupon  Coke  moved  to 
have  restitution  of  the  goods  taken :  and  B.  of  the  Crown-office 
said,  that  the  fresh-suit  was  not  inquired ;  for  upon  an  appeal  one 
shall  not  have  restitution  without  fresh-suit.  Coke,  The  books  are, 
that  if  the  defendant  in  an  appeal  of  robbery  be  attainted  by 
verdict,  the  fresh-suit  shall  not  be  inquired  of:  but  here  he  was 
attainted  by  outlawry,  and  not  by  verdict,  and  so  the  fresh-suit 
cannot  be  inquired :  and  here  the  indictment  within  a  week,  and 
the  appeal  within  a  month  after  the  robbery,  is  a  fresh-suit.  Wray, 
Fresh-suit  in  our  law  is  to  pursue  the  felon  from  town  to  town, 
but  the  suing  of  an  appeal  is  not  in  any  fresh-suit :  See  21  Edw. 
IV.  IG.  Eestitution  granted  upon  an  outlawry  in  an  appeal  of  rob- 
bery without  fresh-suit  inquired :  1  Hen.  lY.  5,  if  he  confess  the 
felony  :  see  2  Eich.  IlL  13. 

(b)      Capture  by  the  Aj^pellor  or  One  of  Sis  Band  of  Pursuers. 
Reported  Y.  B.  30  and  31  Edward  I.  527.     Anno  1302. 

A  man  pursued  a  thief  who  had  several  stolen  things  upon  him 
and  tied  with  the  oxen  ;  the  owner  of  the  oxen  followed  up  the  thief 
with  his  goods  until  they  came  near  to  a  monastery,  and  the  thief 
took  refuge  in  the  church,  and  remained  there  until  the  Coroner 
came,  and  summoned  him  to  come  to  the  peace ;  he  did  not  come, 
and  would  not  come,  but  abjured  the  King's  realm  ;  afterwards  the 
Coroner  delivered  the  chattels  to  the  owners,  because  they  had  fol- 
lowed up  and  tried  to  take  the  thief  who  had  stolen  their  goods 
until  he  got  to  the  monastery,  and  because  he  abjured  the  realm. 
Tlie  Coroner  delivered  their  chattels,  and  for  having  foolishly  de- 
livered them,  he  was  brought  to  judgment  before  the  Justices  in 
Eyre. 


106 


CASES   OX    COMMON-LAW   PLEADING. 


(c)      Tliief  to  he  Taken  loith  Stolen  Goods  in  His  Possession. 

DICKSON'S   CASE. 

In  the  Common  Pleas.     1627. 

Reported  Hetley,  64. 

At  Sergeant's  Inn  in  Chancery  Lane  this  question  was  debated, 
If  a  man  steal  goods,  and  the  very  owner  makes  fresh  "  sute  "  to 
take  the  felon,  so  that  he  waives  the  goods  and  flies ;  and  before 
the  owner  comes,  the  goods  are  seised  as  goods  waived,  and  af[ter- 
wards]  the  owner  comes  and  challenges  them.  Now  if  he  shall 
have  them,  or  they  shall  be  forfeited  was  the  question.  And  it 
was  held  by  Harvey  and  Crook,  that  they  are  not  at  all  forfeited  ; 
for  that  the  owner  had  done  his  endeavor  and  pursued  from  village. 
And  that  the  goods  shall  not  be  said  to  be  waived,  but  where  it 
cannot  be  known  to  whom  the  property  is.  Hutton,  Chief  Justice, 
and  Yellerton  said,  That  goods  waived  shall  be  said  those  which 
are  stolen,  and  that  the  felon  being  pursued,  for  danger  of  appre- 
hension waives  and  liies.  Now  if  they  are  seised  before  that  the 
owner  comes,  the  property  is  presently  altered  out  of  the  owner  in 
the  lord,  although  that  he  made  fresh  "  sute,"  if  that  "  sute  "  was 
not  within  the  view  of  the  felon  always.  But  they  all  agreed,  if 
the  felon  does  not  flie,  but  is  apprehended  with  the  goods,  that 
then  the  owner  shall  have  his  goods  without  question.  Or,  if  the 
owner  comes  and  challenges  the  goods  before  seisure,  and  after 
the  flight  of  the  felon.  Harvey  said,  The  statute  of  21  Hen.  YIII. 
c.  13,  does  not  remedy  anything,  as  to  the  restitution  of  the  goods 
stolen.  But  upon  the  evidence  of  the  party,  or  by  others  by  his 
procurement  in  the  same  manner.  As  it  was  in  an  appeal  upon  a 
fresh  "  sute  "  at  the  common  law. 


(d)      Thief  to  be  Convicted  on  Pursuer's  Appeal.^ 
Y.  B.  30-31  Edward  I.  527.     Anno  1302. 

"  It  is  coroner's  law  that  he,  whose  goods  were  taken,  shall  not 
have  them  back  unless  the  felon  be  attainted  at  his  suit." 

1  The  shortcomings  and  hardships  of  the  appeal  of  robbery  are  too  apparent  for 
comment.     It  never  was,  even  in  theory,  a  substitute  fur  replevin  or  detinue. 


ACTIONS    BEFORE   THE   STATUTE    OF    WESTMINSTER   II.  107 

AjO^      '^^f^r  GOODMAN  V.  AYLING. 

In  the  Common  Pi.eas.     1608. 

Reported  1  Brownlow  and  Goldesborough,  213. 

Trespass  and  replevin  distinguished. 

An  action  of  trespass  brought,  that  the  defendant  the  8th  of  Feb- 
ruary, 4  Jacobi,  broke  the  plaintiff's  house,  and  took  and  carried 
away  one  brass  chafer  of  the  plaintiff's,  price  20s.     The  defendant 
pleads  that  the  house  is  parcel  of  half  a  yard  land  in  P.,  and  that  it 
was  holden  of  H.,  Earl  of  North,  as  of  his  manor  of  W.  by  homage, 
fealty,  escuage,  incertain  suit  of  court,  enclosure  of  the  park  pale, 
and  rent  one  pound  of  Comyn,  and  for  the  rent  behind  for  three 
years,  and  the  homage  and  fealty  of  Th.  P.,  tenant  thereof ;   the 
defendant,  as  servant  of  the  Earl,  and  by  his  command,  justified  the 
entry,  and  taking,  etc.     The  plaintiff  replies,  that  the  house  was 
held  of  R  Stanley,  as  of  his  manor  of  Lee,  without  that,  that  it 
was  held  of  the  Earl  in  manner  and  form  ;  and  upon  this  they  were 
at  issue,  and  the  jury  found  it  was  held  of  the  Earl,  as  of  his 
manor  of  P.  by  homage ,  fealty,  enclosure  of  the    pale,  rent  of  a 
pound  of  Comyn,  and  no  otherwise.     And  if  it  seemed  to  the  court 
that  it  was  not  held  in  manner  and  form  ;  they  found  for  the  plain- 
tiff', etc.      And  adjudged  for  the  defendant,  for  although  the  verdict 
did  not  agree  with  the  plea  in  manner  and  form  of  the  tenure, 
yet  it  agreed  in  substance  in  the  point,  for  which  the  taking  was, 
to  wit,  that  the  land  was  holden  of  the  Earl,  and  that  suffices ; 
for  there  is  difference    between  a  replevin    and   trespass:  for   in 
replevin,  because  the   avowant  is  to  have  return,  it  behoves  tlie 
avowant  to  make  a  good  title  in  all  things,  but  otherwise  it  is  in 
trespass ;  for  there  the  defendant  is  bound  only  to  excuse  the  tres- 
pass, and  therefore  if  there  be  any  tenure,  it  suffices:  for  if  the  lord 
or  bailiff'  in  his  right  distrains  for  that  which  is  not  due,  yet  lie  shall 
not  be  punished  in  trespass,  as  Littleton,  114,  for  the  manner  and 
form:  and  9   Hen.  VIL,  which   mark  by  the  whole  court:  and 
Fleming,  Justice,  vouched  the  33  Hen.  VIII.  ;  Dyer,  48  B.  where 
the  issue  was,  whether  a  villain  regardant,  etc.  or  free :  And  the 
jury  found  a  villain  in  gross,  yet  it  was  held  good  for  the  substance 
of   the    villainage,   and   of   the   issue   were   found.  Hen.  V.  Jac. 
rotido,  834. 


108  CASES   ON    COMMON-LAW   PLEADING. 

HARVIE   V.  BLACKLOLE. 

In  the  Common  Pleas.     1610. 

Reported  1  Brownlow  and  Goldesborough,  236. 

Trespass  did  not  lie  against  the  third  hand. 

An  action  of  trespass  brought,  wherefore  by  force  and  arms  his 
mare  so  strictly  to  a  gilding  did  fetter,  that  by  fettering,  the  mare 
aforesaid  did  die.  If  a  stranger  take  a  horse  that  cometh  and 
strayeth  into  a  manor,  the  lord  may  have  his  action  of  trespass. 
If  my  stray  doth  stray  out  of  my  manor,  and  goeth  into  another 
manor  the  day  before  the  year  be  ended,  I  cannot  enter  into  the 
other  manor  to  fetch  out  the  stray ;  if  I  take  an  horse  as  a  stray, 
and  another  taketh  him  from  me,  the  action  lietli  not  by  the  owner 
against  the  second  taker,  because  the  first  taker  hath  divested  the 
property  out  of  the  owner.  The  defendant  in  this  justified  the 
taking  of  the  mare  as  a  stray,  and  did  not  allege  that  he  came  as 
an  estray ;  and  the  plea  was  held  insufficient,  and  the  court  held  they 
could  not  tie  them  together.  And  the  defendant  said,  that  the 
hay  ward  took  the  mare  and  delivered  her  to  the  defendant ;  this 
was  but  not  guilty,  and  judgment  for  the  plaintiff. 

Reported  Sel.  Fl.  Cor.  (Sel.  Soc.)  88.     Anno  1203. 
But  a  bailee  might  maintain  an  appeal  of  robbery. 

Ealph  Long  appeals  William  of  Winwick,  for  that  he  wickedly 
and  in  premeditated  assault  robbed  him  at  Langhaw  of  fifteen 
marks  of  silver  which  he  was  carrying  as  part  of  his  lord's  rent,  and 
in  respect  of  which  he  had  become  answerable  to  his  lord,  and 
robbed  him  also  of  a  cloak  of  vert  and  a  tunic  and  a  half-mark  of 
[Ralph's]  own  ;  and  this  he  offers  to  prove  against  him.  And  he 
added  that  when  he  had  escaped  from  [William's]  hands  he  went 
to  the  township  of  Chipping  and  there  raised  tlie  cry,  and  then 
went  to  the  coroners  and  afterwards  to  the  county  [court],  where 
his  complaint  was  put  in  writing.  And  William  defends  all  of  it, 
and  says  that  he  was  not  at  the  place  which  [Ralph]  has  named, 
nor  in  the  country,  and  offers  the  king  one  mark  for  an  inquest 
[to  find]  whether  this  be  spite  or  no. 

A  day  is  given  the  aforesaid,  a  month  after  Michaelmas,  to  hear 
judgment. 


ACTIOXS   BEFOEE    THE   STATUTE   OF   WESTMINSTER   II.  109 


Reported  Y.  B.  30-31  Edward  I.  508.     Anno  1302. 

Stolen  goods  in  a  thief's  hands  when  forfeited  to  the  Crown  like  his  own 
chattels.^ 

One  Alice  de  Boddemen  was  attached  witli  a  bundle  of  cloth  ; 
Walter  de  C.  was  ready  to  sue  ;  and  he  counted  by  words  of  felony. 
Alice  put  herself  on  the  Inquest,  and  was  condemned ;  and  Walter 
prayed  to  have  his  chattels  delivered  to  him.  — The  Justice  asked 
the  Twelve  if  Alice  was  first  attached  at  the  suit  of  Walter  or 
at  the  suit  of  any  one  else.  —  The  Twelve,  Sir,  at  the  suit  of 
Walter. — Note,  that  if  she  had  been  first  attached  at  the  suit  of 
any  one  else  than  Walter,  Walter  would  not  have  had  back  his 
chattels. 

[Note,  that  he  who  wishes  to  abjure  the  realm  shall  take  the  port 
assigned  to  him  by  the  Coroner,  and  no  other  port.] 

CHARACTERISTICS   OF   TRESPASS   TO   PLAINTIFF'S 

GOODS. 

DAY  V.  AUSTIN. 

In  the  King's  Bench.     1713. 

Reported  Owen,  70. 

In  a  trespass,  the  defendant  justified  the  taking  of  a  furnace  fixed 
to  the  earth,  because  the  sheriff  upon  an  intent  sold  it  to  him. 
And  by  the  court  it  was  held  a  good  discharge  :  for  if  a  stranger 
takes  my  horse,  and  sells  him,  a  trespass  will  not  lie  against  the 
vendee,  but  a  detinue.  But  if  one  sells  my  horse,  and  a  stranger 
takes  him,  he  is  a  trespasser.^ 

MARLOW  V.  WEEKS. 

In  the  Common  Pleas.    1744. 

Reported  Barnes,  Notes,  452. 

Trespass  for  assaulting,  beating,  and  wounding  plaintiff's  mare. 

After,  a  verdict  for  plaintiff,  defendant  moved  in  arrest  of  judg- 
ment, objecting,  that  an  action  of  assault  and  battery  is  not  appli- 
cable to  a  dead  thing,  or  a  brute  beast,  but  to  one  of  the  human 

1  See  Ames,  Disseisin  of  Chattels,  3  Harv.  L.  Rev.  24. 

*  So  much  of  the  case  as  does  not  relate  to  Injury  to  Possession  is  omitted. 


110  CASES    ON   COMMON-LAW    PLEADING. 

species  only.  The  objection  was  now  overrul?d,  and  the  order  nisi 
causa  discharged.  Assault  upon  a  ship  (a  dead  thing)  bad;  but 
for  an  injury  to  a  beast,  a  writ  in  trespass  vl  et  armis  appears  in  the 
Register;  the  beating  and  wounding  are  found  by  the  jury. 
Draper  for  defendant;  Wynne  for  plaintiff.^ 

"  There  seems  to  be  no  such  writ  in  the  Register.  Trespass  for 
the  asportation  or  the  destruction  of  a  chattel  are  the  only  writs 
for  trespass  affecting  personal  property.  Other  injuries  to  chattels 
were  doubtless  deemed  of  too  trivial  a  nature  to  warrant  a  proceed- 
ing inr  the  king's  court,  and  were  redressed  in  the  inferior  courts. 
See  also  Y.  B.  12  Hen.  IV.  fl.  8,  pi.  15."    Ames,  Cases  on  Torts,  49. 

DANIEL  COLE  v.   JACOB   FISHER. 

Supreme  Judicial  Court,  Massachusetts.    1814. 

Reported  11  Massachusetts,  136. 

Trespass  lies  for  an  injury  to  plaintiff's  chattel,  even  when  not  amounting 
to  an  asportation  or  a  destruction  thereof. 

Trespass  vi  et  armis,  for  firing  a  gun,  by  which  the  plaintiffs 
horse  was  frightened,  and  ran  away  with  his  chaise,  and  broke  and 
spoiled  it,  etc. 

The  cause  came  before  the  court  upon  an  agreed  statement  of 
facts  to  the  following  effect,  viz.:  The  defendant,  after  washing 
out  two  guns,  went  to  the  door  of  his  shop,  and,  standing  there, 
discharged  one  of  the  guns,  for  the  purpose  of  drying  it  the  said 
shop  door  being  about  one  rod  distant  from  the  highway.  At  the 
time  of  said  discharge,  the  plaintiff  s  horse,  harnessed  in  his  chaise, 
was  fastened  by  his  bridle  to  the  fence  on  the  opposite  side  of  the 
highway.  The  horse,  being  frightened  by  the  discharge  of  the  gun, 
broke  the  bridle,  and  ran  away  with  the  chaise,  which  was  thereby 
broken  and  injured.  After  the  horse  was  unharnessed  and  put  into 
a  pasture  in  the  defendant's  neighborhood,  he  discharged  another 
gun,  for  the  like  purpose  of  drying  it. 

If,  upon  these  facts,  in  the  opinion  of  the  court,  the  plaintiff  could 
maintain  this  action,  the  defendant  was  to  be  defaulted,  and  the 
plaintiffs  damages  to  be  assessed  by  a  jury,  unless  agreed  by  the 
parties;  if  the  plaintiff  could  not,  in  the  opinion  of  the  court, 
maintain  his  action  on  the  facts  agreed,  he  was  to  become  nonsuit, 
and  the  defendant  recover  his  costs. 

There  was  no  argument,  and  the  opinion  of  the  court  was  delivered 

1  Such  actions  are  now  common.     See  Cole  v.  Fisher,  11  Mass;  137. 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER   II.  Ill 

l>y  Sewall,  C.  J.  Upon  this  state  of  facts,  our  opinion  is,  that  the 
jiLiintiff  has  sustained  an  injury  by  the  act  of  the  defendant.  The 
plaintiff  has  a  right  of  action,  a  just  demand  for  damages;  but 
whether  in  the  form  of  trespass,  or  of  trespass  on  the  case,  is  a 
question  of  some  difficulty  in  the  circumstances  of  this  case. 

The  well-known  distinction  of  immediate  injury  and  consequen- 
tial injury  is  the  rule  upon  which  our  doubts  have  arisen  :  in  all 
other  respects,  the  action  is  clearly  maintained  for  the  plaintiff 
upon  the  facts  agreed. 

It  is  immaterial,  as  respects  the  right  of  action,  or  the  form, 
whether  the  act  of  the  defendant  was  by  his  intention  and  purpose 
injurious  to  the  plaintiff,  or  the  mischief  which  ensued  was  acci- 
dental, and  beside  his  intention  or  contrary  to  it.  The  decision  in 
the  case  of  Underwood  v.  Hewson  ^  has  never  been  questioned. 
There  the  defendant  was  uncocking  his  gun,  when  it  went  off  and 
accidentally  wounded  a  bystander.  The  defendant  was  charged  and 
holden  liable  in  trespass.  Other  cases,  before  and  since,  might  be 
cited,  in  which  the  same  doctrine,  which  governed  in  that  decision, 
has  been  recognized  as  the  law.  There  is  a  very  full  and  accurate 
collection  of  the  decisions  on  this  subject,  both  as  to  the  right  and 
the  form  of  action,  in  Chitty  on  Pleading,  to  which  I  refer.^ 

In  the  case  at  bar,  it  does  not  appear,  from  the  facts  stated,  how 
near  the  place  where  the  horse  was  fastened  was  to  the  door  of  the 
shop,  the  place  where  the  gun  was  fired.  If  the  horse  and  chaise 
were  in  plain  sight,  and  near  enough  to  be  supposed  to  excite  any 
attention  or  caution  on  the  part  of  the  defendant,  or  if  it  was  in 
evidence  that  he  had  noticed  their  being  there,  exposed  to  the  con- 
sequences of  his  firing  the  gun,  and  the  distance  was  such  as  that, 
by  common  experience,  there  might  be  a  reasonable  apprehension 
of  frightening  the  horse  by  the  discharge  of  the  gun,  1  should  think 
the  defendant,  although  no  purpose  of  mischief  was  proved,  and 
even  if  it  was  not  a  case  of  very  gross  negligence,  liable  in  an  action 
of  trespass.  On  the  other  hand,  if  the  plaintiff's  horse  and  chaise 
were  out  of  his  sight,  and  had  not  been  noticed  by  the  defendant, 
and  the  distance  was  such  that  no  reasonable  apprehension  of 
frightening  the  horse  could  arise,  supposing  the  horse  and  chaise 
to  have  been  observed  by  the  defendant,  the  injury  is  hardly  to  be 
considered  as  sufficiently  immediate  upon  the  act  of  the  defendant 
to  render  him  liable  in  this  form  of  action. 

Upon  the  whole,  if  the  parties  agree  in  the  amount  of  damages, 
a  contest  about  the  form  of  action  will  be  of  little  avail  to  the 

1  Strange,  596. 

a  Chitty,  123,  128;  Sir  T.  Eaym.  422,  467;  Hob.  134;  Str.  596. 


112  CASES   ON   COMxMON-LAW    PLEADING, 

defendant ;  as,  if  he  should  defeat  the  plaintiff  in  this  suit,  the 
expenses  of  it  might  be  properly  urged  as  a  ground  of  further 
damages,  in  an  action  of  the  case.  If  the  parties  do  not  agree,  we 
shall  leave  the  case  to  the  jury  to  settle  it  as  a  question  of  fact, 
upon  the  principles  I  have  stated. 

The  court  would  take  this  occasion  to  observe  upon  the  dangers 
to  which  travellers  on  foot  and  in  carringes  are  exposed  by  dis- 
charges of  guns  in  or  near  the  highways,  —  dangers  affecting  not 
only  the  property,  but  the  limbs  and  lives,  of  their  fellow-citizens, 
and  others  entitled  to  the  protection  of  the  laws.  The  extreme 
inconsiderateness,  and  sometimes  the  purposes  of  wanton  mischief, 
discoverable  in  acts  of  this  description,  are  to  be  corrected  and 
punished.  The  party  injured,  either  in  his  person  or  property,  by 
the  discharge  of  a  gun,  even  when  the  act  is  lawful,  as  at  a  military 
muster  and  parade,  and  under  the  orders  of  a  commanding  oSicer, 
is  entitled  to  redress  in  a  civil  action,  to  the  extent  of  his  damage  ; 
and  where  the  act  is  unnecessary,  a  matter  of  idle  sport  and 
negligence,  and  still  more  when  the  act  is  accompanied  with  pur- 
poses of  wanton  or  deliberate  mischief,  and  any  hurt  or  damage 
ensues,  the  guilty  party  is  liable,  not  only  in  a  civil  action,  but  as 
an  offender  against  the  public  peace  and  security ;  is  liable  to  be 
indicted,  and,  upon  conviction,  to  be  fined  and  imprisoned,  and, 
indeed,  to  worse  consequences,  where  loss  of  limb  or  of  life  is  the 
consequence  of  this  inhuman  negligence  and  sport.^ 


DANNET  V.  COLLINGDELL. 

In  the  King's  Bench.     1684. 

Eeported  2  Shower,  395. 

Trespass  for  taking  and  carrying  away  averia  ipsius  quer.,  namely, 
unum  equum,  etc.,  nccnon  icnum  galerum  Anglice  one  hat. 

Mr.  Holt,  after  verdict,  moved  in  arrest  of  judgment,  that  as  to 
the  hat,  there  is  no  property  laid  in  the  plaintiff. 

And  judgment  was  stayed. 

1  1  Chitty,  Plead.  5th  ed.  146 ;  Moreton  v.  Hardem,  4  Barn.  &  Cresw.  226. 


ACTIONS   BEFORE    THE    STATUTE   OF   WESTMINSTER   II.  113 

HOYT  V.  GELSTON. 

Supreme  Court  of  New  York.     1816. 

Reported  13  Johnson,  141,  at  150. 

Trespass  lies  by  one  in  possession  without  title  against  one  who,  as  a 
wrong-doer,  takes  possession  of  the  plaintiff's  chattel. 

Spencer,  J.,  delivered  the  opinion  of  the  court.  "  The  bill  of  ex- 
ceptions, taken  at  the  trial,  presents  two  points  for  the  considera- 
tion of  the  court :  — 

"  1.  Was  there  sufficient  evidence  of  property  in  the  plaintiff  [to 
maintain  trespass]  ? 

"  2.    [The  second  point  is  here  immaterial]. 

"  With  respect  to  the  first  point,  the  bill  of  exceptions  states, 
that  the  plaintiff  gave  in  evidence,  that,  at  the  time  of  the  seizure 
of  the  ship  'American  Eagle,'  by  the  defendants,  she  was  in  the 
actual,  full,  and  peaceable  possession  of  the  plaintiff;  and  that,  on 
the  acquittal  of  the  vessel  in  the  district  court,  it  was  decreed  that 
she  should  be  restored  to  the  plaintiff,  the  claimant  of  the  vessel 
in  that  court ;  and  the  plaintiff  then  gave  in  evidence  the  proceed- 
ings in  the  district  court,  by  which  the  above  facts  fully  appeared. 
In  this  stage  of  the  cause,  and  after  the  plaintiff  had  proved  the 
seizure  of  the  ship  by  the  defendants,  and  her  value,  a  motion  was 
made  by  the  defendant's  counsel,  that  the  plaintiff  should  be  non- 
suited, on  the  ground  that  there  was  not  sufficient  evidence  to  en- 
title the  plaintiff  to  a  verdict,  no  right  or  title  having  been  shown 
in  the  plaintiff  to  the  ship.  We  are  of  opinion  that  the  motion  for 
a  nonsuit  was  correctly  overruled.  It  is  a  general  and  undeniable 
principle,  that  possession  is  a  sufficient  title  to  the  plaintiff  in  an 
action  of  trespass,  vi  et  armis,  against  a  wrong-doer.  1  East's  Eep. 
244;  3  Burr.  1563  ;  Willes's  Eep.  221 ;  Esp.  Dig.  403,  Gould's  edit, 
part  2,  289.  The  finder  of  an  article  may  maintain  trespass  against 
any  person  but  the  real  owner ;  and  a  person  having  an  illegal  pos- 
session may  support  this  action  against  any  other  than  the  true 
owner.  1  Chitty's  PI.  168 ;  2  Saund.  47  d.  If  these  principles  are 
applied  to  this  case,  it  will  appear,  at  once,  that  the  evidence  of 
the  plaintiff's  right  to  the  ship  was  very  ample.  He  was  not  only 
in  the  actual,  full,  and  peaceable  possession  of  the  ship,  but  he  was 
the  claimant  of  her  in  the  district  court ;  and  she  has  been  awarded 
to  him  by  a  sentence  of  that  court.  The  defendants  make  the  ob- 
jection without  a  pretence  of  right,  on  their  part,  as  they  stand 
before  the  court  in  the  character  of  tort-feasors. 

8 


114  CASES    ON    COMMON-LAW    PLEADING. 

"  In  the  progress  of  the  cause,  the  plamtiff  proved  himself  to  be 
the  owner  of  the  ship ;  and  even  if  it  was  admitted  that  the  proof 
before  given  was  insufficient,  a  new  trial  ought  not  to  be  awarded 
on  tlie  ground  of  proof  of  title  in  the  plaintiff,  when  that  very  proof 
was  before  the  jury,  and  is  now  spread  on  the  record.  In  no  point 
of  view  have  the  defendants  entitled  themselves  to  a  new  trial 
on  this  part  of  the  bill  of  exceptions."  ^ 

SMITH   AND   ANOTHER   v.   MILLES. 
In  the  King's  Bench.    1786. 
Keported  1  Term  Reports,  475. 

This  was  an  action  of  trespass  brought  by  the  assignees  of  a 
bankrupt  against  the  defendant,  who  was  sheriff  of  the  county  of 
Hertford. 

The  first  count  in  the  declaration  was  for  breaking  and  entering 
the  messuages,  etc.,  of  the  plaintiffs  as  assignees,  on  the  23d  of  Feb- 
ruary, 1786,  and  seizing  and  taking  the  deeds  and  writings,  house- 
hold furniture,  etc.  (enumerating  them  particularly),  of  the  assignees. 
The  second  count  was  for  seizing  and  taking  the  goods,  etc.,  of  the 
plaintiffs  on  the  13th  of  March,  1786. 

The  defendant  pleaded,  1st,  the  general  issue  ;  and  2dly,  a  justifi- 
cation under  a  fieri  facias,  sued  out  on  the  13th  of  February,  1786, 
at  the  suit  of  one  Caleb  Atkinson,  against  the  bankrupt,  and  de- 
livered to  him  on  the  21st  of  February,  1786,  to  be  executed. 
Replication  de  injicria  sua  propria  absque  tali  causa. 

This  cause  came  on  to  be  tried  at  the  last  assizes  for  the  county 
of  Hertford,  before  Lord  Loughborough,  when  the  plaintiffs  proved 
a  commission  of  bankrupt,  dated  the  27th  of  February,  1786,  against 
Clarke,  on  the  petition  of  more  than  three  creditors ;  and  that  the 
bankrupt,  at  the  time  of  issuing  the  commission,  was  indebted  to 
one  of  them  in  the  sum  of  £161.  They  then  proved  the  trading; 
and  an  act  of  bankruptcy  on  the  1st  of  February,  1786.  They  also 
proved,  that  on  the  23d  of  February,  1786,  and  not  before,  the  de- 
fendant, as  sheriff  of  Hertford,  entered  the  dwelling-house  of  the 
bankrupt,  and  there  seized  the  several  goods,  etc.,  of  the  bankrupt, 
under  and  by  virtue  of  the  said  writ  of  fieri  facias  ;  that  on  the  28th 
of  the  same  month  of  February,  Clarke  was  declared  a  bankrupt, 
on  which  day  the  commissioners  executed  a  provisional  assignment 
of  the  bankrupt's  estate  and  effects  to  their  messenger,  whereof 
the  officer  in  possession  under  the  execution  on  the  same  day  had 

1  The  reporter's  statement  of  facts,  tho  arguments,  and  part  of  the  opinion  are 
omitted. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  115 

notice;  that  on  the  13th,  14th,  15th,  and  16th  days  of  March,  the 
said  goods  and  chattels  were  sold  by  public  auction  under  the 
aforesaid  execution ;  that  on  the  morning  of  the  said  13th  day  of 
March,  the  said  sheriff  had  notice  from  the  aforesaid  provisional 
assignee  not  to  selj;  that  on  the  17th  of  March,  the  plaintiffs  were 
chosen  as  assignees,  etc.,  of  the  bankrupt  under  the  said  commission, 
and  that  an  assignment  thereof  was  then  duly  made  to  them. 

To  this  evidence  the  defendant  demurred. 

Eussell,  in  support  of  the  demurrer.     Shepherd,  contra. 

Ashhurst,  J.  We  will  consider  this  question ;  but  it  seems  to 
me  that  it  is  very  like  the  case  of  Cooper  and  Chitty. 

Buller,  J.  The  second  count  does  not  in  all  cases  avoid  the 
necessity  of  a  new  assignment.  The  general  use  of  adding  the 
second  count  is  this ;  the  first  charges  an  injury  done  to  tlie  land, 
and  taking  the  goods  there :  that  is  in  its  nature  local,  and  must  be 
proved  where  laid.  Then  the  reason,  and  almost  the  only  one,  for 
adding  the  second  count  is,  in  order  to  avoid  the  locality ;  it  is  for 
taking  goods  generally.  That  is  of  a  transitory  kind,  and  may  be 
supported,  though  the  taking  be  proved  to  be  elsewhere.  There 
cannot  be  a  new  assignment  but  where  there  is  a  special  plea. 
And  if  the  case  be  such  that,  on  a  special  plea,  the  plaintiff  may 
be  driven  to  a  new  assignment,  he  may  give  the  matter  in  evidence 
under  the  second  count  on  not  guilty.     Cur.  adv.  vult. 

Ashhurst,  J.,  now  delivered  the  opinion  of  the  court. 

It  might  perhaps  have  sufficed  for  us  to  say,  that  the  point  now 
in  question  has  been  solemnly  determined  in  this  court  in  the  case  of 
Cooper  against  Chitty,  upon  full  and  mature  deliberation,  by  a  full 
court.  And  for  that  reason,  whatsoever  our  opinions  might  have 
been  (as  we  are  now  only  two  judges  sitting  in  court),  it  would  not 
have  been  very  decent  in  us  to  have  overruled  the  authority  of  that 
case.  But  we  are  relieved  from  any  difficulty  on  that  account,  as 
our  opinion  entirely  coincides  with  that  of  the  judges  in  the  above 
case. 

To  entitle  a  man  to  bring  trespass,  he  must,  at  the  time  when  the 
act  was  done,  which  constitutes  the  trespass,  either  have  the  actual 
possession  (Ward  v.  Macauley,  po^t.  Vol.  IV.,  p.  489)  in  him  of  the 
thing  which  is  the  object  of  the  trespass,  or  else  he  must  have  a 
constructive  possession  in  respect  of  the  right  being  actually  vested 
in  him. 

Such  is  the  case  cited  at  the  bar  of  an  action  of  trespass  for  an 
estray,  or  wreck,  taken  by  a  stranger  before  seizure  by  the  lord. 
For  the  right  is  in  the  lord,  and  a  constructive  possession,  in  respect 
of  the  thing  being  within  the  manor  of  which  he  is  lord. 


116  CASES    ON   COMMON-LAW   PLEADING. 

So  the  executor  has  the  right  immediately  on  the  death  of  the 
testator,  and  the  right  draws  after  it  a  constructive  possession. 
The  probate  is  a  mere  ceremony,  but,  when  passed,  the  executor 
does  not  derive  his  title  under  the  probate,  but  under  the  will :  the 
probate  is  only  evidence  of  his  right,  and  is  necessary  to  enable  him 
to  sue ;  but  he  may  release,  etc.,  before  probate. 

But  there  is  no  instance,  that  I  know  of,  where  a  man  who  has  a 
new  right  given  him,  which  from  reasons  of  policy  is  so  far  made  to 
relate  back  as  to  avoid  all  mesne  encumbrances,  shall  be  taken  to 
have  such  a  possession  as  to  bring  trespass  for  an  act  done  before 
such  right  was  given  to  him. 

But  at  all  events  the  rule  will  hold  with  respect  to  officers  and 
ministers  of  justice.      Vide  2  Eo.  Ab.  561,  Title  Trespass,  VI. 

In  the  case  of  Lechmere  v.  Thoroughgood,  1  Show.  12,  which  was 
an  action  of  trespass  brought  by  the  assignees  of  bankrupts  against 
a  sheriff's  oiScer,  who  took  goods  under  an  extent,  the  act  of  bank- 
ruptcy was  on  the  28th  of  April;  afterwards  the  sheriff's  officer 
took  the  goods  under  an  extent,  and  then  an  assignment  was  made 
to  the  plaintiffs,  who  brought  trespass :  and  it  was  held  the  action 
lay  not ;  and  the  argument  turned  on  this,  that  the  officers  shall 
not  be  made  trespassers  by  relation.  The  same  doctrine  is  recog- 
nized in  the  case  of  Baily  and  Bunning,  1  Lev.  173. 

Now  here  the  execution  was  fully  completed,  and  the  goods 
sold,  before  the  assignment  to  the  plaintiffs.  In  the  case  of  Cooper 
and  Chitty,  Lord  Mansfield  lays  down  the  true  ground  of  distinction 
between  the  action  of  trover  and  the  action  of  trespass,  as  applied 
to  this  case  ;  "  The  action  of  trover  (he  says)  is  maintainable,  because 
the  conversion,  and  not  the  taking,  is  the  gist  of  the  action  ;  and  the 
sale  was  after  the  act  of  bankruptcy  was  notorious.  But  (he  says) 
that  though  the  property  by  relation  was  in  the  assignees  from  the 
time  of  the  act  of  bankruptcy,  yet  the  taking  by  the  sheriff,  as  ap- 
plied to  this  species  of  action,  was  lawful.  And  he  says  the  seem- 
ing contrariety  and  confusion  in  the  cases  arise  from  the  equivocal 
use  of  the  word  lawful.  For  (says  he)  to  support  the  act,  it  is  not 
lawful ;  but  to  excuse  the  mistake  of  the  sheriff,  it  is  lawful ;  or  in 
other  words  the  relation  introduced  by  the  statutes  binds  the  prop- 
erty ;  but  men  who  act  innocently  at  the  time  are  not  made  crim- 
inal by  relation,  and  therefore  are  excusable  from  being  punishable 
by  indictment  or  action  as  trespassers.  But  as  a  ground  to  support 
a  wrongful  conversion  by  a  sale  after  a  commission  publicly  taken 
out  and  an  actual  assignment  made,  it  was  not  lawful."  The  plain- 
tiffs therefore  are  not  injured,  as  it  is  competent  to  them  to  recover 
the  value  of  the  goods  by  bringing  a  proper  action,  namely,  an  ac- 


ACTIONS    BEFORE   THE    STATUTE    OF   WESTMINSTER   II.  117 

tion  of  trover.     But  the  officer  shall  not  be  harassed  by  this  species 
of  action,  in  which  the  jury  might  give  vindicative  damages. 

Therefore  on  the  whole  the  judgment  must  be  for  the  defendant. 
Postea  to  be  delivered  to  the  defendant. 


"What  Must  Be  Proved. 

"  Trespass  to  goods  is  an  unlawful  taking  or  interfering  with  the 
possession  of  goods.  All  other  wrongful  acts  connected  with  the 
trespass  are  aggravation  of  the  wrong.  Accordingly,  to  prove  .  .  . 
the  interrupting  of  the  plaintiff's  possession,  or  right  to  take 
possession,  of  goods  is  necessary  to  make,  and  will  make,  a  prima 
facie  case."     Bigelow,  Torts,  206,  2d  Camb.  ed. 

(c)     The  Ge?iesis  of  Tresj^ass  to  Plaintiff  ^s  Land. 

Hugh  of  Euperes  appeals  John  of  Ashby,  for  that  he  in  the  king's 
peace  and  wickedly  came  into  his  meadows  and  depastured  them 
with  his  cattle,  and  this  he  offers,  etc.  And  John  comes  and  de- 
fends all  of  it.  And  whereas  it  was  testified  by  the  sheriff  and  the 
coroners,  that  in  the  first  instance  [Hugh]  had  appealed  John  of 
depasturing  his  meadows  and  of  beating  his  men,  and  now  wishes 
to  pursue  his  appeal,  not  as  regards  his  men,  but  only  as  regards 
his  meadows,  and  whereas  an  appeal  for  depasturing  meadows  does 
not  appertain  to  the  crown  of  our  lord  the  king,  it  is  considered 
that  the  appeal  is  null,  and  so  let  Hugh  be  in  mercy  and  John  be 
quit.     Hugh  is  in  custody,  for  he  cannot  find  pledges.^ 

1.     T/ie  Ancient  Action,  Coupled  xoith  Intentional  Wrong. 

HUBERT   OF   ST.    Q.    v.   STEPHEN    OF    F.    et  al. 

Anno  1195. 
Reported  Rot.  Cur.  Regis,  38. 

[The  defendants  are  appealed  of  entering  the  plaintiffs  premises 
feloniously,  with  force  and  arms,  and  carrying  off  turf;  and  this 
the  plaintiff  offers  to  prove  by  W.  N.  and  E.  of  St.  M.     The  de- 

1  Sel.  PI.  Cor.  (Sel.  Soc.)  35.     Anno  1202  a.  d. 

"  Whatever  may  liappen  at  a  later  day,  the  writ  of  trespass  is  as  yet  no  proper 
writ  for  a  man  who  has  been  disseised  of  land.  A  whole  scheme  of  actions,  towering 
upwards  from  the  novel  disseisin  to  the  writ  of  right,  is  provided  for  one  who  is  being 
kept  out  of  land  that  he  ought  to  possess."     2  P.  and  M.  165. 


118  CASES   ON   COMMON-LAW    PLEADING. 

fendant  W.  comes  and  defends  the  felony,  and  says  that  the  prem- 
ises from  which  he  took  the  turf  were  his  own  frank  tenement,  and 
not  that  of  the  plaintiff.  The  defendant  R.  comes  and  defends 
everything  charged  upon  him  de  verbo  in  verbum.  Judgment  that 
the  sheriff  cause  a  view  of  the  land  in  question  by  four  knights,  and 
by  them  report  to  whom  the  premises  belong.] 

"Hubertus  de  Sancto  Quintino  appellat  Stephanam  de  Fauconberge  et  Willelmum 
de  Killinge  et  Everardum  de  Whittico  et  Kobertum  de  Tudiutona  et  illorum  vim 
quod  veuerunt  in  terram  suam  de  Bortona  cum  vi  et  armis  et  robberia  et  necjuiter  et 
in  pace  domini  regis  asportaverunt  catalla  sua  scilicet  turbas  ad  valenciam  LX.  soli- 
doruni  et  ea  duxerunt  in  curiam  illius  Willelmi,  et  \\»c  offert  probare  per  Walterum 
Norensem  qui  custos  erat  terrae  illius  versus  ipsum  Willelmum  et  per  Eicardum  de 
Sancto  Micbaelo  versus  Robertum  qui  enm  vidit  in  vi  ilia,  et  vicecomes  testatnr  quod 
Stepbanus  non  fuit  inventus  quando  summonitio  primo  venit,  quia  est  ultra  mare. 
Willelmus  venit  et  defendit  feloniam  et  robberiam  et  totnm  de  verbo  in  verbum  et 
dicit  quod  turbas  quas  asportavit,  asportavit  de  libero  tenemento  sno  et  de  feodo  suo, 
et  non  in  feodo  ipsius  Hubert! ;  et  Hubertus  dicit  quod  turbas  illas  fodere  et  facere 
fecit  postquam  dominus  rex  Ricardus  applicuit  de  Alamannia  bene  et  in  pace  et  sine 
aliquo  clamio  quod  Willelmus  inde  fecisset,  et  quod  post  transfretracionem  domini 
regis  in  Normanniam  illas  asportavit ;  et  Robertus  totum  defendit  versum  ipsum 
Hubertnm  de  verbo  in  verbum.  Consideratum  est  quod  vicecomes  faciat  fieri  visum 
de  terra  ilia  unde  turbe  asportate  fuerunt,  et  per  IIII.  milites  ferre  recordum  illius 
visas  cujus  sit  terra  ilia  ;  apud  Westraonasteriura."  ^ 


2.    The  Modern  Action. 

"  There  is  this  important  distinction  between  the  law  relating  to 
possession  of  real  property  and  that  relating  to  possession  of  per- 
sonalty :  to  enable  a  plaintiff  to  recover  for  trespass  to  realty,  he 
must  have  had  a  real  possession  [unless,  indeed,  he  had  possession 
'  by  relation  ']  ;  while  a  plaintiff  may  recover  for  trespass  to  per- 
sonalty if  he  had  a  right  to  take  possession,  —  in  which  case  he  is 
said  to  have  constructive  possession.  To  assimilate  the  two  cases, 
it  is  often  said  that  the  right  to  take  possession  of  personalty  draws 
possession  in  law.  Whoever  then  has  a  right  to  the  possession  of 
a  chattel,  whether  it  be  towards  all  the  world  or  only  towards  the 
defendant,  is  in  a  position  to  sue  for  an  interruption  of  his  enjoy- 
ment thereof.  For  example :  The  defendant,  without  permission, 
takes  goods  out  of  the  possession  of  A.,  after  A.  has  sold  them  to 
the  plaintiff,  but  before  they  have  been  delivered  to  him.  This  is 
a  breach  of  duty  to  the  plaintiff."  ^ 

1  Rigelow,  Placita  Anglo  Normanica.  285.  Tbe  learned  writer  adds,  "  It  is  worthy 
of  notice  that  the  right  of  property  is  here  ordered  to  be  tried  in  an  action  of  trespass." 

2  Bacon's  Abr.  Trespass,  C.  2  ;  Bigelow's  L.  C.  Torts,  370.  "Qiitere,  whether  posses- 
sion of  personalty  in  itself  will  support  an  action,  as,  e.  g.  the  possession  of  a  thief 
who  is  dispossessed  by  another  thief  ?  It  is  urged  that  mere  possession  is  enough. 
Pollock  &  Wright,  Possession,  91,  93,  147,  148.     It  may  on  the  other  hand  be  urged 


ACTIONS   BEFORE   THE   STATUTE   OF   WESTMINSTER   IL  119 

GRAHAM   V.  PEAT. 

In  the  King's  Bench.     1801. 

Reported  1  East,  288. 

The  possession  of  one  not  holding  under  legal  right  is  good  against  a 
stranger. 

Trespass  quare  clausum  f regit.  Plea,  the  general  issue  (and  cer- 
tain special  pleas  not  material  to  the  question).  At  the  trial  before 
Graham,  B.,  at  the  last  assizes  at  Carlisle,  the  trespass  was  proved 
in  fact ;  but  it  also  appeared  that  the  locus  in  quo  was  part  of  the 
glebe  of  the  rector  of  the  parish  of  Workington  in  Cumberland, 
which  had  been  demised  by  the  rector  to  the  plaintiff,  and  that  the 
rector  had  not  been  resident  within  the  parish  for  five  years  last 
past,  and  no  sufficient  excuse  was  shown  for  his  action.  Where- 
upon it  was  objected  that  the  action  could  not  be  maintained,  the 
lease  being  absolutely  void  by  the  act  of  the  13  Eliz.  c.  20,  which 
enacts  that  no  lease  "  of  any  benefice  or  ecclesiastical  promotion 
with  cure  or  any  part  thereof  shall  endure  any  longer  than  while 
the  lessor  shall  be  ordinarily  resident  and  serving  the  cure  of  such 
benefice  without  absence  above  fourscore  days  in  any  one  year ; 
but  that  every  such  lease  immediately  upon  such  absence  shall 
cease  and  be  void."     And  thereupon  the  plaintiff  was  nonsuited. 

A  rule  was  obtained  in  Michaelmas  Term  last  to  show  cause  why 
the  nonsuit  should  not  be  set  aside,  upon  the  ground  that  the  action 
was  maintainable  against  a  wrong-doer  upon  the  plaintiff's  posses- 
sion alone,  without  showing  any  title. 

Cockell,  Serjt.,  Park,  and  Wood,  now  showed  cause,  and  insisted 
that  possession  was  no  further  sufficient  to  ground  the  action  even 
against  strangers  than  as  it  was  primd  facie  evidence  of  title,  and 
sufficient  to  warrant  a  verdict  for  the  plaintiff,  if  nothing  appeared 
to  the  contrary.  But  here  it  did  expressly  appear  by  the  plaintiff's 
own  case  that  his  possession  was  wrongful,  for  it  was  a  possession 
in  fact  against  the  positive  provision  of  an  act  of  parliament,  with- 
out any  color  of  title  even  against  strangers.  1  Leon.  307.  He  was 
not  even  so  much  as  tenant  at  sufferance ;  though  it  is  not  certain 

that  only  that  sort  of  possession  wliich  is  capable  of  ripening  into  a  title  should  be 
protected,  as,  e.  g.  the  possession  of  a  finder.  In  the  Roman  law  a  tliief  could  not 
have  the  actio  furti.  Dig.  47,  2,  11  ;  id.  47,  2,  12,  1  ;  Inst.  4,  1,  13.  See  also  Buckley 
V.  Gross,  3  Best  &  S.  566,  573,  Crompton,  J.  As  to  the  criminal  law  of  such  cases, 
see  Commonwealth  v.  Rourkc,  10  Gushing  (Mass.),  397,  399;  Pollock  &  Wright,  Pos- 
session, 118  et  seq."     Bigelow,  Torts,  208,  209,  2d  ed.  English. 


120  CASES   ox    COMMON-LAW    PLEADING. 

that  this  latter  can  maintain  trespass.^  It  is  settled  that  the  plain- 
tiff could  not  have  maintained  an  ejectment  against  a  stranger  who 
had  evicted  him.^  It  appears  from  Plowd.  546,  that  there  must  not 
only  be  a  possession  in  fact  of  land  to  maintain  trespass,  but  the 
possession  must  be  lawful  at  the  time.  And  an  instance  is  given, 
if  the  king  be  seised  in  fee,  and  a  stranger  enter  upon  him  claiming 
title,  and  continue  in  possession  a  year  and  a  day,  yet  he  cannot 
maintain  trespass  against  a  wrong-doer.  And  though  5  Com.  Dig. 
537,  says  that  he  may,  yet  the  authority  cited  for  it  does  not  war- 
rant the  position,  and  is  directly  contrary  to  an  adjudged  case  in  4 
Leon.  184  (Lord  Kenyon.  That  goes  upon  artificial  reasoning  that 
the  king  cannot  be  dispossessed  by  an  intruder,  and  does  not  apply 
to  other  cases).  Suppose  there  had  been  a  plea  of  soil  and  freehold 
of  the  rector,  and  that  the  defendant  as  his  servant  and  by  his 
command  entered,  etc. ;  it  being  settled  that  there  cannot  be  a  trav- 
erse to  the  command ;  ^  the  plaintiff  must  either  have  traversed 
its  being  the  title  of  the  rector,  or  have  shown  a  legal  possession 
consistent  therewith,  as  that  he  had  a  lease  from  him ;  and  then  it 
would  have  been  shown  in  answer  that  the  lease  was  void  by  the 
statute ;  and  either  way  there  must  have  been  judgment  against 
the  plaintiff.  Now  it  was  equally  competent  to  the  defendant  to 
avail  himself  of  this  upon  the  general  issue. 

Law,  Christian,  and  Holroyd,  contra,  were  stopped  by  the  court. 
Lord  Kenyon,  C.  J.  "  There  is  no  doubt  but  that  the  plaintiff's 
possession  in  this  case  was  sufficient  to  maintain  trespass  against  a 
wrong-doer ;  and  if  he  could  not  have  maintained  an  ejectment 
upon  such  a  demise,  it  is  because  that  is  a  fictitious  remedy  founded 
upon  title.  Any  possession  is  a  legal  possession  against  a  wrong- 
doer. Suppose  a  burglary  committed  in  the  dwelling-house  of  such 
an  one,  must  it  not  be  laid  to  be  his  dwelling-house  notwithstand- 
ing the  defect  of  his  title  under  the  statute  ? " 

Per  curiam,  Eule  absolute.'* 

1  Vide  5  Com.  Dig.  tit.  Trespass,  B,  1,  where  it  is  said  that  he  may  against  a 
strauger,  and  cites  2  Roll.  Abr.  551,  1.  42,  but  this  latter  book  lays  down  the  position 
with  "contra  9  Hen.  VL  43,  b,  admit." 

■^  Doe  d.  Crisp,  v.  Barber,  2  Term  Rep.  749. 

3  Vide  6  Co.  24,  a,  and  Salk.  107,  but  if  both  parties  claim  under  the  same  person 
the  command  is  traversable,  for  it  would  be  absurd  to  traverse  a  title  which  both 
admit.     Cro.  Car.  586. 

*  "  Whoever  is  in  possession  may  maintain  an  action  of  trespass  against  a  wrong- 
doer to  his  possession."  Harker  t\  Birbeck,  3  Burr.  1563.  So  Cary  v.  Holt,  2  Stra. 
1238.  "Trespass  is  a  possessory  action  founded  merely  on  the  possession,  and  it  is 
not  at  all  necessary  that  the  right  should  come  in  question."  Lambert  v.  Stroother, 
Willes'  Rep.  221. 


ACTIONS   BEFORE    THE   STATUTE    OF   WESTMINSTER   II.  121 

GEORGE   SPARHAWK   AND  WIFE  v.   PETER  B.  BAGG. 

Supreme  Judicial  Court  of  Massachusetts.     November,  1860. 

Keported  16  Gray,  583. 

A  reversionary  interest  does  not  entitle  the  owner  thereof  to  maintain  tres- 
pass, he  not  being  possessed. 

Action  of  tort  for  entering  with  horses  and  carts  upon  a  close 
bounded  southerly  on  land  formerly  of  Edward  Tuckerman,  west- 
erly on  Treniont  Street,  northerly  by  land  of  the  Boston  and  Wor- 
cester Eailroad  Corporation,  and  easterly  by  land  of  Paschal  P. 
Pope.  The  defendant,  in  his  answer,  put  in  issue  the  plaintiffs' 
title,  and  justified  under  a  right  of  way  in  the  Boston  and  Worces- 
ter Kailroad  Corporation. 

At  the  trial  in  the  Superior  Court  of  Suffolk  at  September  term, 
1857,  before  Abbott,  J.,  it  appeared  that  the  female  plaintiff  was 
one  of  the  heirs  of  Johnson  Jackson,  who  died  in  1825 ;  that  be- 
fore his  death  Jackson  and  Tuckerman,  owning  respectively  ad- 
joining tracts  of  land  extending  from  Tremont  Street  to  Washington 
Street,  made  conveyances  thereof,  each  giving  by  agreement  twelve 
feet  to  make  a  passage-way  twenty-four  feet  wide,  and  reserving  a 
right  of  way  therein  ;  that  this  strip  was  afterwards  called  Orange 
Place  or  Orange  Street,  and  was  the  place  alleged  to  be  trespassed 
upon ;  that  the  female  plaintiff  and  William  Cornell  had  the  title 
to  lands  on  this  place  under  various  deeds,  all  describing  the  lands 
granted  as  bounded  by  Orange  Place  or  Orange  Street ;  and  that 
the  acts  complained  of  consisted  in  the  defendant,  as  the  servant 
of  the  Boston  and  Worcester  Eailroad  Corporation,  driving  carts 
over  it.  There  was  no  evidence  of  any  special  damage  done  to  the 
soil,  or  any  injury  to  the  female  plaintiffs  reversionary  interest 
therein.  The  other  facts  necessary  to  the  understanding  of  the 
case  are  stated  in  the  opinion.  The  verdict  was  for  the  defendant, 
and  the  plaintiffs  alleged  exceptions. 

G.  Sparhawk,  for  the  plaintiffs. 

G.  S.  Hale,  for  the  defendant. 

Chapman,  J  "  The  questions  presented  by  this  case  are  whether 
the  several  rulings  of  the  judge  of  the  Superior  Court,  as  stated  in 
the  bill  of  exceptions,  are  correct. 

"  The  first  relates  to  a  portion  of  the  loaLs,  which  is  described  in 
the  mortgage  of  the  plaintiff,  George  Sparhawk,  to  Lydia  Noyes, 
made  on  the  14th  of  March,  1857.  Before  any  of  the  acts  com- 
plained of  were  done  by  the  defendant,  the  mortgagee  had  entered 


122  CASES   ON   COMMON-LAW   PLEADING. 

to  foreclose,  and  she  has  ever  since  remained  in  possession.  Spar- 
hawk  held  the  property  in  right  of  his  wife,  and  mortgaged  his 
estate.  The  alleged  trespasses  consisted  of  the  use  of  the  locus  as  a 
way  by  drawing  loads  of  gravel  over  it  with  teams.  The  ruling 
that  the  plaintiff  had  no  title  to  that  portion  of  the  premises,  suffi- 
cient to  maintain  this  action,  was  correct.  If  the  acts  of  the  de- 
fendant were  tortious,  the  mortgagee  was  the  party  entitled  to  the 
action,  and  not  these  plaintiffs,  there  being  no  injury  done  to  the 
reversionary  interest."  ^ 

THE   KING  V.   WATSON.     >      »       '^' 

Extract. 

In  the  King's  Bench.     1804. 

Keported  5  East's  Term  Reports,  480,  at  487. 

Lawrence,  J.  "  This  is  the  case  of  certain  persons,  who,  having,  as 
I  understand  the  case,  the  exclusive  enjoyment  of  land  for  a  year 
for  the  purpose  of  turning  on  their  cattle,  are  to  be  considered  as 
tenants  in  common  of  it.  The  corporation  are  the  owners  of  the 
land ;  the  burgesses,  it  seems,  are  by  the  custom  entitled  to  have  it 
divided  amongst  certain  of  them  every  year,  according  to  a  certain 
stint  settled  by  the  leet  jury :  when  it  is  so  meted  out  to  them, 
they  are  tenants  in  common.  I  think  it  would  be  very  difficult, 
after  the  land  was  so  meted  out,  to  say  that  the  corporation  could 
maintain  trespass  for  any  injury  done  on  the  land  to  the  rights  of 
these  persons ;  because  if  that  were  so,  it  would  show  that  the  cor- 
poration were  in  the  occupation  of  it.  For  as  I  said  before,  tres- 
pass can  only  be  maintained  by  those  who  are  possessed  of  the  land. 
But,  according  to  what  I  collect  from  this  case,  the  resident  burgesses 
are  the  occupiers." 

BROWN   V.   GILES. 

At  Nisi  Prius.     1823. 

Reported  1  Carrington  and  Payne,  118, 

This  was  an  action  against  the  defendant,  for  breaking  the  plain- 
tiff's close  with  dogs,  etc.,  and  trampling  down  his  grass  in  a  certain 
close,  called  Bryant's  close,  in  the  parish  of  A.,  on  divers  days.  The 
defendant  pleaded  the  general  issue. 

1  The  part  of  the  opinion  as  to  the  other  exceptions  is  omitted.  —  Ed. 


ACTIONS   BEFORE   THE    STATUTE    OF    WESTMINSTER   11.  123 

The  usual  notice  not  to  trespass  was  proved ;  and  a  witness 
proved,  that,  after  the  notice,  he  saw  the  defendant  walking  down 
the  turnpike  road,  and  his  dog  jumped  into  the  field  called  Bryant's 
close. 

Park,  J.,  was  decidedly  of  opinion  that  the  dog  jumping  into  the 
field,  without  the  consent  of  its  master,  not  only  was  not  a  wil- 
ful trespass,  but  was  no  trespass  at  all,  on  which  an  action  could 
be  maintained;  he  should  therefore  nonsuit  the  plaintiff.^ 


r";  / 


J^      J^\^^  Section  V. 

COVENANT. 

"  The  writ  of  covenant  lies  where  a  party  claims  damages  for  breach  of 
covenant,  i.  e.  of  a  promise  under  seal."  Stephen,  Pleading,  76  [Andr. 
1st  ed.]. 

Covenant,  at  its  origin,  was  peculiar  to  the  realty.  By 
the  Statute  of  Wales,  it  was  extended  to  "  movables  as  well 
as  immovables."  As  finally  developed,  it  is  a  personal  ac- 
tion, miserably  narrow,  because  limited  to  specialties. 

The  history  of  covenant  may  be  thus  briefly  traced:  1. 
In  early  English  law,  the  use  of  seals  was  confined  to  kings 
and  great  men.  2.  Later,  the  use  of  seals  became  compar- 
atively general.  Every  petty  knight  had  a  seal.  3.  Still 
later,  in  the  reign  of  Edward  I.,  it  was  held  that  certain 
unsealed  acquittances  or  receipts  were  worth  nothing  be- 
cause they  lacked  seals.  This,  of  course,  was  long  before 
the  modern  notion  of  want  of  consideration  made  its  advent 
into  English  law.  A  rule  of  procedure  declared  that  an 
unsealed  writing  was  not  admissible  as  evidence,  and  the 
case  undoubtedly  turned  upon  that  ground.  4.  Centuries 
after.  Sir  John  Davies,  Attorney-General  of  Ireland,  reiter- 
ated this  rule  of  procedure  as  the  general  doctrine  of  the 
common  law,  but  noted  certain  exceptional  cases,  such  as 
promissory  notes  and  policies  of  assurance,  which  were  ad- 
missible in  evidence  though  unsealed.  This,  it  would  seem, 
because  of  the  custom  of  merchants  to  treat  such  paper  as 

^  So  much  of  the  case  as  does  not  relate  to  the  above  issue  is  omitted.  —  Ed. 


124  CASES    ON    COMMON-LAW   PLEADING. 

not  requiring  a  seal.  5.  "VVe  next  come  to  a  time  when  the 
old  rule  of  procedure  broke  down  altogether,  and  the  excep- 
tional doctrine  peculiar  to  promissory  notes  and  policies  of 
assurance  became  general.  No  writing  was  incompetent  as 
evidence  of  a  contract  because  it  lacked  a  seal.  6.  If  an 
unsealed  writing  formerly  worthless  because  inadmissible, 
had  been  raised  to  the  dignity  of  admissible  evidence,  sealed 
and  unsealed  instruments  would  seem  to  have  been  put 
upon  a  common  plane.  The  law  of  Contracts  in  Lord 
Mansfield's  day  knew  familiarly  the  modern  maxim  that, 
ordinarily,  a  contract  must  be  based  upon  a  consideration. 
It  knew  also  that  a  sealed  writing  required  no  considera- 
tion ;  but  w^hether  an  unsealed  writing  required  a  consid- 
eration, was  not  wholly  clear.  This  very  question,  in  the 
case  of  Pillans  v.  Van  Mierop,  Lord  Mansfield  was  called 
upon  to  decide.  He  gave  the  logical  decision  —  that  an 
unsealed  writing  was  good  without  consideration.  From 
two  standpoints,  his  decision  was  right,  (a)  Because  the 
old  disjoensation  of  the  law  of  evidence,  which  sanctified  the 
specialty  and  cursed  the  parol,  was  dead  letter,  (h)  Be- 
cause, even  in  Lord  Mansfield's  time,  education  was  so 
rare  that  to  write  was  a  formidable  task;  and  one  who 
laboriously  traced  upon  a  parchment  the  characters  that 
formed  his  name  would  not  be  acting  lightly.  It  could 
not,  therefore,  be  truly  said,  that  sealed  instruments  alone 
required  no  consideration  because  he  who  had  set  his  seal 
to  paper  must  be  presumed  to  have  acted  with  great  delib- 
eration. For  the  average  man  of  Lord  Mansfield's  day, 
signing  was  as  serious  as  sealing.  7.  The  last  stage  in 
the  evolution  of  covenant  was  reached  when  Pillans  v.  Van 
Mierop  was  overturned  by  the  House  of  Lords  in  Rann  v. 
Hughes,  and  it  became  English  law  that  every  contract 
must  have  a  consideration  or  a  seal. 

Mr.  Justice  Holmes  has  said,  "  Whenever  we  trace  a  lead- 
ing doctrine  of  substantive  law  far  enough  back,  we  are 
likely  to  find  some  forgotten  circumstance  of  procedure  at 
its  source."  ^     To  what  extent  may  be  thus  traced  the  rule 

1  Holmes,  Common  Law,  253. 


ACTIONS   BEFORE   THE    STATUTE    OF   WESTMINSTER   II.  125 

of  substantive  law  concerning  covenant  and  consideration, 
is  to  be  gathered  from  the  following  pages. 

THE   HISTORY   OF   COVENANT. 

Breve  de  Convencione. 

Rex  Vicecomiti  salutem.  Precipe  A.  quod  juste  et  sine  dilatione 
teneat  B.  convencionem  inter  eos  factum  de  uno  mesuagio  [cum,  Tot.'] 
decern  acris  terre,  et  quinque  acris  bosci  cum  pertin.  in  N.  Et  nisi 
fecerit,  etc.  tunc  summoneas  predictum  A.  quod  sit,  etc.  ostensurus 
etc.,  Dat.  etc.^ 

SCOPE   OF   THE   ACTION   OF   COVENANT   BEFOEE 
STATUTE   OF   WALES,    1284. 

Case  decided  Michaelmas,  Anno  1201.2 

"  Robert  de  Anmer  offered  himself  on  the  fourth  day  against 
William  de  Anmer,  of  a  plea  of  agreement  made  between  him  and 
the  said  William  about  one  hundred  and  seventy-eight  acres  of  land 
with  appurtenances  in  Anmer.  And  [William]  did  not  come  or 
essoin  himself.  Therefore  let  him  be  attached  to  be  [here]  on  the 
quindene  of  S.  Martin,  to  answer,  and  to  show,  etc." 

"  We  must  not  forget  that  the  writ  of  covenant  is  no  less  '  droit- 
ural '  in  form  than  that  of  debt.  .  .  .  Almost  all  the  recorded  cases 
on  covenants  of  the  thirteenth  and  early  fourteenth  centuries  ap- 
pear to  relate  to  interests  in  land,  although  it  is  certainly  said  in 
the  Statutum  Walliae,  c.  10, ' petuntur  aliquando  mohilia  aliquando 
immohilia.'  ^  Judgment  might  be  given  for  the  recovery  of  seisin 
where  power  of  re-entry  for  breach  of  covenant  was  expressly  given 
in  a  lease,  and  possibly  in  other  cases."  ^ 

1  As  given  in  Stat,  of  Wales,  12  Edw.  I.  153.     Pickering's  Ed. 

2  Sel.  Civ.  PI.  (Sel.  Soc.)  PI.  89. 

8  "  De  tertio  articulo  in  qno  provisum  est  Breve  de  conventione,  per  quod  petuntur 
aliquando  mobilia,  aliquando  iniinobilia,  per  vim  conventionis  iuite  inter  partes,  que 
legi  derogat,  in  fornia  in  loco  prenotato  conscripta."      Stat.  Wales,  12  Edw.  I.  159,  n.  4. 

[The  Statute  of  Wales,  supra,  thus  defines  the  sco]ie  of  the  action  of  covenant : 

"  P>t  quia  infinite  sunt  contractus  conventionum,  diflScile  esset  facere  nientionem  de 
quolibet  in  special!,  set  secundam  naturam  cujuslil)et  conventionis  per  aflirniationcm 
unius  partis  et  negationem  alterius,  aut  pervenietur  ad  Inquisitionem  fai'ieiidam 
super  facto  negotii,  aut  pervenietur  ad  cognitionem  Scriptoruni  in  judicio  prolatorum, 
et  secundum  illam  cognitionem  erit  judicandum ;  aut  negal)untur  Scripta  et  tunc  per- 
venietur ad  inquirendum  de  confectione  Scriptorum  per  testes  in  Scriptis  noniin.atos, 
si  fuerint  simul  cum  patria ;  quod  si  testes  non  fuerint  nominati,  vel  etiara  mortui, 
tunc  solummodo  perpatriam."] 

*  Sir  Frederick  Pollock  in  6  Harv.  L.  Rev.  399. 


126  CASES   ON   COMMON-LAW   PLEADING. 

SCOPE   or   THE   ACTION   OF   COVENANT   AFTER   THE 
STATUTE   OF   WALES. 

Extract. 
Reported  Y.  B.  30  and  31  Edward  I.  144.     Anno  1302. 

Briimpton.  "  Inasmuch  as  this  [action  of  covenant]  is  a  personal 
action,  which  is  given  against  the  person  who  committed  the  tres- 
pass and  the  tort,  and  you  have  not  assigned  any  tort  in  the  person 
of  Eoger,  therefore  the  court  adjudges  that  you  take  nothing  hy 
your  writ,  etc.,  but  be  in  mercy  for  your  false  plaint,  etc." 

Extract  from  the  Case  of 

ABBOT  WALTER   v.  GILBERT   DE   BAILLOL.     ABOUT    1154. 

Chron.  Mon.  de  Bello,  106  (Aug.  Chris.   Soc). 

Reported  Big.  Plac.  Ang.  Norm.  175. 

[The  king  grants  his  writ  at  the  instance  of  Walter,  abbot  of  St. 
Martin  ;  to  John,  Earl  of  Eu,  commanding  him  to  do  justice  by  the 
abbot  against  Gilbert  de  Baillol  as  to  certain  lands.  The  defendant 
evades  the  trial  in  various  ways.  Leave  is  finally  obtained  to  bring 
the  suit  into  the  king's  court,  but  the  king's  presence  cannot  be  ob- 
tained. The  cause,  though  much  litigated  before  the  justitiars, 
comes  to  no  satisfactory  conclusion.  The  king's  presence  is  at  last 
obtained,  and  the  trial  proceeds.  The  abbot's  case  is  stated  by  a 
monk  and  by  a  kniglit.  The  charters  are  read  before  the  court, 
whereupon  Gilbert  objects  that  some  of  them  are  without  seals. 
Richard  de  Lucy  replies  with  contempt  at  the  modern  custom  for 
every  little  knight  (militulus)  to  have  a  seal,  and  the  objection  is 
overruled.] 

"  Quem  intuens  vir  magnificus  et  prudens  Ricardus  de  Luce  ipsius 
abbatis  frater,  tunc  domini  regis  justicia  prima,  queerit  utrum  ipse 
sigillum  habeat.  Quo  asserente  se  sigillum  habere,  subridens  vir 
illustris,  '  Moris,'  inquit,  *  antiquitus  non  erat  quemlibet  militulum 
sigillum  habere,  quod  regibus  et  prsecipius  tantum  competit  per- 
sonis,  nee  antiquorum  temporibus  homines  ut  nunc  causidicos  vel 
incredulos  malitia  reddebat.' " 

Reported  Y.  B.  30  and  31  Edward  L  158.    Cornish  Iter.    a.  d.  1302. 

Adam  le  Marchand  brought  his  writ  of  debt  against  William 
Collon,  chaplain,  and  counted  that  tortiously  he  withheld  from 
him  ten  pounds,  etc.  ;  and  tortiously  for  this,  that  whereas  he  had 


ACTIONS    BEFORE   THE    STATUTE    OF    WESTMINSTER   II.  127 

bound  himself  to  the  said  Adam  in  the  said  ten  pound  for  the  al- 
tarage of  the  church  of  C,  etc.  —  Lanfar.  He  owes  his  debt  for  the 
altarage  of  the  church  of  C,  whereof  we  do  not  understand  that  this 
court  can  take  cognizance,  etc.  —  Berrewik.  Answer  over.  —  Lan- 
far. What  have  you  to  show  for  the  debt  ?  —  Kyngeshani  produced 
a  writing  which  testified  the  debt.  —  Lanfar.  His  writing  shows 
that  he  leased  the  altarage  to  us  for  one  year ;  thereupon  we  tell 
you  that  the  parson  died  within  the  year,  on  which  the  bishop  se- 
questrated the  goods ;  and  we  lost  the  altarage  for  two  weeks,  in 
respect  of  which  we  pray  to  be  discharged ;  and  as  to  the  remain- 
der, he  can  claim  nothing,  for  we  have  fully  paid  his  proctor.  — 
And  he  produced  two  writings  indented,  made  between  the  proctor 
and  himself,  but  without  seal.  —  Kyngesham.  He  has  admitted 
the  deed  and  the  debt,  and  has  shown  no  discharge ;  judgment, 
etc.  —  Berrewik.  If  he  was  ejected  within  the  year,  as  he  says,  it 
is  not  just  that  he  should  pay  you  the  pension  for  the  altarage  for 
the  whole  year ;  as  to  the  remainder,  the  acquittances  are  worth 
nothing  ;  but  if  he  has  really  paid,  act  in  good  faith,  and  come  to 
terms.  —  Hunt  said,  that  for  the  time  for  which  Adam  was  ejected 
William  could  recover  nothing,  since,  when  the  cause  ceased  the 
effect  ought  also  to  cease.  And  Mutford  said,  Suits  ought  not  to 
arise  out  of  suits. 

"  In  a  suit  at  the  common  law  no  man's  writing  can  be  pleaded 
against  him  as  his  act  and  deed,  unless  the  same  be  sealed  and  de- 
livered ;  but  in  a  suit  between  merchants,  bills  of  lading  and  bills 
of  exchange,  being  but  tickets  without  seals,  letters  of-  advice  and 
credences,  policies  of  assurance,  assignations  of  debt,  all  which  are 
of  no  force  at  the  common  law,  are  of  good  credit  and  force  by  the 
law  merchant."  ^ 

[^Note  that  a  policy  of  assurance  is  a  written  but  unsealed  contract  to  pay  a  sum  of 
money  upon  the  haj)pening  of  a  specified  contingent  event,  the  consideration  for 
such  payment  being  the  receipt  from  the  assured  of  a  much  smaller  sum.  —  Ed.] 

"Neither  debt  nor  indebitatus  asmmpsit  at  that  time^  met  the 
case:  a  promise  to  pay  £100  could  not  be  supported  by  payment  of 
£1.  Nor  would  deceit  lie,  in  the  form  of  special  assumpsit,  i.  e. 
acting  on  promise  held  out  —  the  ordinary  kind  of  consideration. 
See  Harriman,  Contracts,  ss.  631-641,  2d  ed.  Query  whether  the 
case  rests  properly  on  the  ground  of  consideration.  Promise  for 
promise,  etc."  ** 

1  Sir  John  Davies,  Attorney-General  of  Ireland,  in  a  pamphlet  concerning  Imposi- 
tions, written  between  1614  and  1618.  Works  of  Sir  John,  including  his  essay  in 
Boston  AtheniBura  (series  "Fuller's  Worthies"),  ii.  London,  1876. 

2  1614-1618. 

s  Extract  from  manuscript  lecture  on  Insurance  by  M.  M.  Bigelow. 


128  CASES   ON   COMMON-LAW   PLEADING. 

PILLANS   V.  VAN  MIEROP. 

Ix  THE  King's  Bench.     1765. 

Reported  3  Buerow,  1663. 

On  Friday  25th  of  January  last,  Mr.  Attorney-General  Norton, 
on  behalf  of  the  plamtiffs,  moved  for  a  new  trial.  He  moved  it  as 
upon  a  verdict  against  evidence :  the  substance  of  which  evidence 
was  as  follows : 

One  White,  a  merchant  in  Ireland,  desired  to  draw  upon  the 
plaintiffs,  who  were  merchants  at  Eotterdam  in  Holland,  for  £800, 
payable  to  one  Clifford ;  and  proposed  to  give  them  credit  upon  a 
good  house  in  Loudon  for  their  reimbursement,  or  any  other  method 
of  reimbursement. 

The  plaintiffs,  in  answer,  desired  a  confirmed  credit  upon  a  house  of 
their  rank  in  London,  as  the  condition  of  their  accepting  the  bill. 
White  names  the  house  of  the  defendants,  as  this  house  of  rank,  and 
offers  credit  upon  them.  Whereupon  the  plaintiffs  honored  the  draft, 
and  paid  the  money  ;  and  then  wrote  to  the  defendants  Van  Mierop 
and  Hopkins,  merchants  in  London,  (to  whom  White  also  wrote, 
about  the  same  time,)  desiring  to  know  "  Whether  they  would  accept 
such  bills  as  they,  the  plaintiffs,  should  in  about  a  month's  time 
draw  upon  the  said  Van  Mierop's  and  Hopkins's  house  here  in 
London,  for  £800  upon  the  credit  of  Wliite : "  and  they,  having  re- 
ceived their  assent,  accordingly  drew  upon  the  defendants.  In  the 
interim  White  failed  before  their  draft  came  to  hand,  or  was 
even  drawn ;  and  the  defendants  gave  notice  of  it  to  the  plaintiffs, 
and  forbid  their  drawing  upon  them.  Which  they,  nevertheless, 
did :  and  therefore  the  defendants  refused  to  pay  their  bills. 

On  the  trial,  a  verdict  was  found  for  the  defendants. 

Upon  showing  cause,  on  Monday,  11th  February  last,  it  turned 
upon  the  several  letters  tliat  had  respectively  passed  between 
the  plaintiffs,  and  defendants,  and  White.  The  letters  were  read  : 
1st.  Those  from  White  &  Co.  in  Ireland,  to  the  plaintiffs  in  Hol- 
land ;  (by  which  it  appeared  that  Pillans  and  Eose  had  then  ac- 
cepted the  bills  drawn  upon  them  by  White,  payable  to  Clifford;) 
then  those  of  the  plaintiffs  to  the  defendants ;  and  also  White's  to 
the  defendants ;  then  those  of  the  defendants  to  the  plaintiffs, 
agreeing  to  honor  their  bill  drawn  on  account  of  White ;  the  letter 
from  the  defendants  to  the  plaintiffs,  informing  them  "  That  White 
had  stopped  payment,"  and  desiring  them  not  to  draw,  as  they 
could  not  accept  their  draft ;  and  lastly,  that  which  the  plaintiff's 


ACTIONS    BEFORE    THE    STATUTE    OF   WESTMINSTER    II.  129 

wrote  to  the  defendants,  "  That  thev  should  draw  on  them,  holding 
them  not  to  be  at  liberty  to  withdraw  from  their  engagement." 

Lord  Mansfield.  The  objection  is,  "That  the  letter  whereby 
Van  Mierop  and  Hopkins  undertake  to  honor  the  plaintifi's'  bills, 
is  nudum  pactum."     The  other  side  deny  it. 

This  is  the  only  question  here. 

Let  it  be  argued  again  the  next  term ;  and  you  shall  have  the 
opinion  of  the  whole  court. 

Ulterius  Concilium. 

[At  the  trial  before  the  full  court]  Lord  Mansfield  asked  if  any 
case  could  be  found,  where  the  undertaking  holden  to  be  a  nudum 
pactum  was  in  writing. 

Sergeant  Davy.  It  was  anciently  doubted  "  Whether  a  written 
acceptance  of  a  bill  of  exchange  was  binding,  for  want  of  a  consid- 
eration."    It  is  so  said  somewhere  in  Lutwyche. 

Lord  Mansfield.  This  is  a  matter  of  great  consequence  to  trade 
and  commerce,  in  every  liglit. 

If  there  was  any  kind  of  fraud  in  this  transaction,  the  collusion 
and  mala  fides  would  have  vacated  the  contract.  But  from  these 
letters,  it  seems  to  me  clear  that  there  was  none.  The  first  pro- 
posal from  White  was,  to  reimburse  the  plaintiffs  by  a  remittance, 
or  by  credit  on  the  house  of  Van  Mierop ;  this  was  the  alternative 
he  proposed.  The  plaintiffs  chose  the  latter.  Both  the  plaintiffs 
and  White  wrote  to  Van  Mierop  &  Co.  They  answered,  that  they 
would  honor  the  plaintiffs'  drafts.  So  that  the  defendants  as- 
sent to  the  proposal  made  by  White,  and  ratify  it.  And  it  does 
not  seem  at  all,  that  the  plamtiffs  then  doubted  of  White's  suffi- 
ciency, or  meant  to  conceal  anything  from  the  defendants. 

If  there  be  no  fraud,  it  is  a  mere  question  of  law.  The  law  of 
merchants,  and  the  law  of  the  land,  is  the  same.  A  witness  can- 
not be  admitted  to  prove  the  law  of  merchants.  We  must  con- 
sider it  as  a  point  of  law.  A  nudum  pactum  does  not  exist  in  the 
usage  and  law  of  merchants. 

1  take  it,  that  the  ancient  notion  about  the  want  of  consideration 
was  for  the  sake  of  evidence  only ;  for  when  it  is  reduced  into  writ- 
ing, as  in  covenants,  specialties,  bonds,  etc.,  there  was  no  objection 
to  the  want  of  consideration.  And  the  Statute  of  Frauds  proceeded 
upon  the  same  principle. 

In  commercial  cases  amongst  merchants,  the  want  of  considera- 
tion is  not  an  objection. 

This  is  just  the  same  thing  as  if  White  had  drawn  on  Van  Mierop 
and  Hopkins,  payable  to  the  plaintiffs ;  it  had  been  nothing  to  the 

9 


130  CASES    ON    COMMON-LA.W    PLEADING. 

plaintiffs,  whether  Van  Mierop  &  Co.  had  effects  of  White's  in  their 
hands,  or  not;  if  they  had  accepted  his  bilL  And  this  amounts 
to  the  same  thing :  "  I  will  give  the  bill  due  honor,"  is,  in  effect,  ac- 
cepting it.  If  a  man  agrees,  that  he  will  do  the  formal  part,  the 
law  looks  upon  it  (in  the  case  of  an  acceptance  of  a  bill)  as  if 
actually  done.  This  is  an  engagement  "  To  accept  the  bill,  if  there 
was  a  necessity  to  accept  it,  and  to  pay  it  when  due ; "  and  they 
could  not  afterwards  retract.  It  would  be  very  destructive  to 
trade,  and  to  trust  in  commercial  dealing,  if  they  could.  There  was 
nothing  of  nudum,  pactum  mentioned  to  the  jury  ;  nor  was  it,  I  dare 
say,  at  all  in  their  idea  or  contemplation. 

I  think  the  point  of  law  is  with  the  plaintiffs. 

Mr.  Justice  Wilmot.  The  question  is,  "  Whether  this  action  can 
be  supported,  upon  the  breach  of  this  agreement." 

I  can  find  none  of  those  cases  that  go  upon  its  being  nudum, 
pactum,  that  are  in  writing ;  they  are  all  upon  parol. 

I  have  traced  this  matter  of  the  nudum  pactum,  and  it  is  very 
curious. 

He  then  explained  the  principle  of  an  agreement  being  looked 
upon  as  a  nudum  pactum  ;  and  how  the  notion  of  a  nudum  pactum 
first  came  into  our  law.  He  said,  it  was  echoed  from  the  civil  law : 
—  "Ux  nudo  facto  non  oritur  actio."  Vinnius  gives  the  reason, 
in  lib.  3,  tit.  De  Obligationibus,  4to  edit.  596.  If  by  stipulation 
(and  ft  fortiori,  if  by  writing,)  it  was  good  without  consideration. 
There  was  no  radical  defect  in  the  contract,  for  want  of  consideration. 
But  it  was  made  requisite,  in  order  to  put  people  upon  attention 
and  reflection,  and  to  prevent  obscurity  and  uncertainty ;  and  in 
that  view,  either  writing  or  certain  formalities  were  required.  Idem, 
on  Justinian,  4to  edit.  614. 

Therefore  it  was  intended  as  a  guard  against  rash  inconsiderate 
declarations  ;  but  if  an  undertaking  was  entered  into  upon  delibera- 
tion and  reflection,  it  had  activity  ;  and  such  promises  were  binding. 
Both  Grotius  and  Puffendorff  hold  them  obligatory  by  the  law  of 
nations.  Grot.  lib.  2,  c.  11,  De  Promissis.  Puffend.  lib.  3,  c.  5. 
They  are  morally  good ;  and  only  require  ascertainment.  Therefore 
there  is  no  reason  to  extend  the  principle,  or  carry  it  further. 

There  would  have  been  no  doubt  upon  the  present  case,  accord- 
ing to  the  Eoman  law ;  because  here  is  both  stipulation  (in  the 
express  Roman  form)  and  writing. 

Bracton  (who  wrote  temp.  Hen.  III.)  is  the  first  of  our  lawyers 
that  mentions  this.  His  writings  interweave  a  great  many  things 
out  of  the  Roman  law.     In  his  third  book,  cap.  1,  De  Actionibus, 


ACTIONS    BEFORE   THE    STATUTE    OF   WESTMINSTER    II.  131 

he  distinguishes  between  naked  and  clothed  contracts.  He  says 
that  "  Obligatio  est  mater  actionis  ;  "  and  that  it  may  arise  ex  con- 
tractu, multis  modis ;  sicut  ex  convcntione,  etc. ;  sicut  sunt  'pacta, 
conventa,  quce  nuda  sunt  aliquando,  aliquando  vestita,  etc.,  etc. 

Our  own  lawyers  have  adopted  exactly  the  same  idea  as  the 
Roman  law.  Plowden,  308  6,  in  the  case  of  Sheryngton  and  Pledal 
V.  Strotton  and  others,  mentions  it ;  and  no  one  contradicted  it.^ 
He  lays  down  the  distinction  between  contracts  or  agreements  in 
words  (which  are  more  base),  and  contracts  or  agreements  in  writ- 
ing (which  are  more  high);  and  puts  the  distinction  upon  the 
want  of  deliberation  in  the  former  case,  and  the  full  exercise  of 
it  in  the  latter.  His  words  are  the  marrow  of  what  the  Roman 
lawyers  had  said,  "Words  pass  from  men  lightly;"  but  where  the 
agreement  is  made  by  deed,  there  is  more  stay  ;  etc.,  etc.  For,  first, 
there  is,  etc.,  etc. ;  and  thirdly,  he  delivers  the  writing  as  his  deed. 
"The  delivery  of  the  deed  is  a  ceremony  in  law,  signifying  fully  his 
good  will  that  the  thing  in  the  deed  should  pass  from  him  who 
made  the  deed  to  the  other.  And  therefore  a  deed,  which  must 
necessarily  be  made  upon  great  thought  and  deliberation,  shall 
bind,  without  regard  to  the  consideration." 

The  voidness  of  the  consideration  is  the  same,  in  reality,  in  both 
cases  ;  the  reason  of  adopting  the  rule  was  the  same,  in  both  cases  ; 
though  there  is  a  difference  in  the  ceremonies  required  by  each  law. 
But  no  inefticacy  arises  merely  from  the  naked  promise. 

Therefore,  if  it  stood  only  upon  the  naked  promise,  its  being,  in 
this  case,  reduced  into  writing,  is  a  sufficient  guard  against  surprise  ; 
and  therefore  the  rule  of  nudum  pactum  does  not  apply  in  the 
present  case. 

I  cannot  find  that  a  nudum  pactum  evidenced  by  writing  has 
been  ever  holden  bad ;  and  I  should  think  it  good ;  though,  where 
it  is  merely  verbal,  it  is  bad.  Yet  I  give  no  opinion  upon  its  being 
good,  always,  when  in  writing.   .  .  , 

By  the  court  unanimously 

The  rule  "  To  set  aside  the  verdict  and  for  a  new  trial,"  was  made 
absolute.^ 

1  "  Because  words  are  oftentimes  spoken  by  men  unadvisedly  and  without  delibera- 
tion, the  law  has  provided  that  a  contract  by  words  shall  not  bind  without  consideration." 
Stated  in  argument  by  Thomas  Bromley  and  an  apprentice  of  the  middle  temple,  in 
Sharington  v.  Strotton,  Piowd.  .308  a. 

2  The  case  is  long,  and  is  here  but  briefly  reported.  Sufficient  is  given,  however, 
to  show  something  of  its  bearing  upon  the  peculiar  eflScacy  of  covenants. 


132  CASES    ON   COMMON-LAW    PLEADING. 

RANN  V.  HUGHES. 

In  the  House  of  Lords.     1797. 
Reported  7  Term  Reports,  350. 

The  Lord  Chief  Baron  Synner  delivered  the  opinion  of  the  judges  : 
"  But  it  is  said  that  if  this  promise  is  in  writing  that  takes  away 
the  necessity  of  a  consideration  and  obviates  the  objection  of  nudum 
pactum,  for  that  cannot  be  where  the  promise  is  put  in  writing ; 
and  that  after  verdict,  if  it  were  necessary  to  support  the  promise 
that  it  should  be  in  writing,  it  will  after  verdict  be  presumed  that 
it  was  in  writing  ;  and  this  last  is  certainly  true ;  but  that  there 
cannot  be  nudum  pactum  in  writing,  whatever  may  be  the  rule  of 
the  civil  law,  there  is  certainly  none  such  in  the  law  of  England. 
His  lordship  observed  upon  the  doctrine  of  midum  pactum  deliv- 
ered by  Mr.  J.  Wilmot  in  the  case  of  Pillans  v.  Van  Mierop  and 
Hopkins,  3  Burr.  1663,  that  he  contradicted  himself,  and  was  also 
contradicted  by  Vinnius  in  his  comment  on  Justinian. 

"  All  contracts  are  by  the  laws  of  England  distinguished  into 
agreements  by  specialty,  and  agreements  by  parol ;  nor  is  there 
any  such  third  class  as  some  of  the  counsel  have  endeavored  to 
maintain,  as  contracts  in  writing.  If  they  be  merely  written  and 
not  specialties,  they  are  parol,  and  a  consideration  must  be  proved. 
But  it  is  said  that  the  Statute  of  Frauds  has  taken  away  the  neces- 
sity of  any  consideration  in  this  case ;  the  Statute  of  Frauds  was 
made  for  the  relief  of  personal  representatives  and  others,  and  did 
not  intend  to  charge  them  further  than  by  common  law  they  were 
chargeable.  His  lordship  here  read  those  sections  of  that  statute 
which  relate  to  the  present  subject.  He  observed  that  the  words 
were  merely  negative,  and  that  executors  and  administrators 
should  not  be  liable  out  of  their  own  estates,  unless  the  agreement 
upon  which  the  action  was  brought  or  some  memorandum  thereof 
was  in  writing  and  signed  by  the  party.  But  this  does  not  prove 
that  the  agreement  was  still  not  liable  to  be  tried  and  judged  of  as 
all  other  agreements  merely  in  writing  are  by  the  common  law, 
and  does  not  prove  the  converse  of  the  proposition  that  when  in 
writing  the  party  must  be  at  all  events  liable.  He  here  observed 
upon  the  case  of  Pillans  v.  Van  Mierop  in  Burr.,  and  the  case  of 
Losh  V.  Williamson,  Mich.  16  G.  3,  in  B.  E. ;  and  so  far  as  these 
cases  went  on  the  doctrine  of  nudum  pactum,  he  seemed  to  intimate 
that  they  were  erroneous.  He  said  that  all  his  brothers  concurred 
wdth  him  that  in  this  case  there  was  not  a  sufficient  consideration 


ACTIONS   BEFORE    THE   STATUTE   OF   WESTMINSTER   II.  133 

to  support  this  demand  as  a  personal  demand  against  the  defend- 
ant, and  that  its  being  now  supposed  to  have  been  in  writing  makes 
no  difference.  The  consequence  of  which  is  that  the  question  put 
to  us  must  be  answered  in  the  negative." 

And  the  judgment  in  the  Exchequer  Chamber  was  afifirmed.^ 


TURNER   V.  BINION. 

In  the  King's  Bench.     1661. 

Reported  Hardres,  200. 

In  a  bill  to  discover  upon  what  consideration  a  bond  was  given,  that 
had  been  assigned  to  the  king  as  a  debt  in  aid ;  the  court  held  that 
a  man  was  not  bound  to  discover  the  consideration  of  a  bond,  which 
implies  in  itself  a  consideration ;  and  so  Baron  Atkins  said  it  had 
been  ruled  in  chancery. 

FALLOWES   V.   TAYLOR. 

In  the  King's  Bench.     1798. 

Reported  7  Term  Reports,  47.5. 

A  bond  given  to  an  individual,  conditioned  to  be  void  if  the  obligor  (on 
the  obligee's  agreeing  not  to  prosecute  him)  should  remove  certain  public 
nuisances,  and  not  erect  any  others  of  the  same  kind,  is  good  in  law. 

The  defendant,  in  March,  1796,  executed  a  bond  to  the  plaintiff 
in  the  penalty  of  £500  with  a  condition,  (after  reciting  that  the 
defendant  had  erected  and  for  two  or  three  years  kept  and  con- 
tinued three  walls  or  cribs  across  the  river  Wye  which  were  a 
nuisance  to  tlie  navigation,  that  the  magistrates  assembled  at  the 
Quarter  Sessions  at  Hereford  had  directed  the  plaintiff  to  prose- 
cute all  persons  erecting,  keeping  or  maintaining  such  walls,  cribs, 
and  other  nuisances  in  and  upon  the  river  in  order  to  preserve  the 
navigation,  and  that  in  pursuance  of  such  orders  he  (the  plaintiff) 
had  prepared  bills  of  indictment  against  the  defendant,  who  in 
order  to  avoid  the  expense  of  the  indictment  had  applied  to  the 
plaintiff  not  to  prefer  the  same,  upon  condition  that  he  (the  defend- 
ant) should  remove  the  said  nuisances  and  enter  into  this  bond,  to 
which  the  plaintiff  had  consented,)  that  if  the  defendant  did,  on  or 
before  the  first  of  September  then  next,  entirely  remove,  take,  and 
carry  away,  as  well  the  said  walls  or  cribs  as  all  others  that  he  had 
created  or  kept  and  maintained  in  and  upon  the  said  river,  and  the 
stones,  materials,  and   foundations  of  all  such  walls  or  cribs,  so 

1  The  statement  of  facts  is  omitted,  and  part  of  the  opinion  is  omitted. 


134  CASES   ON   COMMON-LAW   PLEADING. 

that  the  same  should  not  remain  and  obstruct  the  course  of  navi- 
gation of  the  river,  and  should  not  at  any  time  erect  or  rebuild  any 
other  walls  or  cribs  in  the  river  to  the  prejudice  or  the  navigation, 
then  the  obligation  should  be  void. 

The  plaintiff  having  declared  upon  the  bond,  the  defendant 
craved  oyer  of  the  condition,  and  pleaded  the  general  issue  and 
performance  of  the  condition,  on  which  issue  was  joined.  And  at 
the  last  Hereford  Assizes  before  Lord  Kenyon,  the  plaintiff  obtained 
a  verdict. 

Abbott,  in  the  last  term,  moved  in  arrest  of  judgment,  on  the 
ground  that  the  contract  disclosed  in  the  condition  of  the  bond  was 
an  illegal  contract  and  could  not  be  enforced  in  a  court  of  justice. 

This  case  was  to  have  been  argued  to-day,  but 

The  court  were  all  clearly  of  opinion  that  they  could  not  arrest 
the  judgment. 

Lord  Kenyon,  C.  J.,  said,  the  want  of  a  consideration  to  a  bond 
affords  no  ground  of  objection  ;  and  if  there  were  anything  illegal  in 
this  consideration,  the  defendant  should  have  pleaded  it.  In  the 
case  of  Pioy  v.  The  Duke  of  Beaufort,  Lord  Chancellor  Hardwicke 
did  not  think  that  the  bond  was  void  at  law,  but  he  gave  relief  to 
the  defendant  on  the  ground  that  the  plaintiff  had  made  an  im- 
proper use  of  it. 

Lawrence,  J.  The  defendant  might  have  given  a  bond  to  the 
plaintiff  without  any  consideration  at  all ;  and  why  may  he  not  give 
a  bond  for  a  consideration  that  is  legal  ? 

Rule  to  arrest  the  judgment  discharged.^ 

Leicester,  for  the  plaintiff.  ,     <i         v  •• 

Miles,  Lane,  and  Abbott,  for  the  defendant. 


CHAWNER   AND   BOWES'   CASE. 

In  the  Common  Pleas.     1613. ■^ 

Reported  Godbolt,  217.     Case  312. 

Anciently,  covenant  did  not  lie  for  a  sura  certain  due  by  virtue  of  a 
specialty. 

Bowes  sold  three  licenses  to  sell  wine  unto  Chawner,  who  cove- 
nanted to  give  him  £10  for  them ;  and  Bowes  covenanted  that  the 
other   should   enjoy   the   licenses.     It   was   moved   in    this    case, 

1  Abbott's  argument  is  omitted. 

2  Although  decided  later  in  point  of  time  than  Anon.,  3  Leonard,  119,  the  above 
case  enunciates  the  ancient  rule  that  "  Covenant  was  not  the  normal  remedy  upon  a 
covenant  to  pay  a  definite  amount  of  money  or  ciiattels  ;  "  a  rule  which  seems  to  have 
prevailed  in  the  Common  Pleas  long  after  it  had  ceased  to  obtain  in  the   King's 


ACTIONS    BEFORE   THE   STATUTE   OF   WESTMINSTER   II.  135 

whether  the  one  might  have  an  action  of  covenant  against  the 
other  in  such  case :  And  the  opinion  of  Warburtoii  and  Nichols, 
justices,  was,  That  if  a  man  covenant  to  pay  £10  at  a  day  certain, 
That  an  action  of  debt  lieth  for  the  money,  and  not  an  action  of 
covenant.  Barker,  sergeant,  said,  he  might  have  the  one  or  the 
other.  But  in  the  principal  case  the  said  justices  delivered  no 
opinion. 

ANON.i 

In  the  Queen's  Bench.    1585. 

Reported  3  Leonard,  119. 

Debt  and  covenant  both  lie  to  recover  a  sum  certain  due  by  virtue  of  a 
specialty. 

Debt  upon  an  obligation ;  The  words  of  the  obligation  were :  I 
am  content  to  give  to  W.  £10  at  Michaelmas  ;  and  £10  at  our 
Lady  day.  It  was  holden  by  the  court,  that  it  was  a  good  obliga- 
tion :  And  it  did  amount  to  as  much  as,  I  promise  to  pay,  etc.  It 
was  also  holden  by  the  court,  that  an  action  of  covenant  lay  upon 
it,  as  well  as  an  action  of  debt,  at  the  election  of  the  plaintiff.  And 
it  was  holden,  that  although  the  action  is  for  £40  and  the  dec- 
laration is  £20  and  £20  at  the  several  days;  yet  it  is  good 
enough,  and  the  declaration  is  well  pursuant  to  it ;  and  afterwards, 
judgment  was  given  for  the  plaintiff. 


/^DEFINITION    AI 


DEFINITION   AND   CHARACTEEISTICS   OF   COVENANT. 

1  Chittt  on  Pleading,^  129. 

"Covenant  is  a  remedy  provided  by  law  for  the  recovery  of 
damages,  for  the  breach  of  a  covenant  or  contract  under  seal." 

Bench.  Precisely  when  the  Common  Bench  adopted  the  practice  of  the  King's 
Bench  it  is,  perhaps,  impossible  to  discover;  but  the  change  was  ])robal)ly  effected 
before  the  end  of  the  reign  of  Charles  I.  Ames,  History  of  Assumpsit,  2  Harv.  L.  Rev. 
56,  57. 

1  2  Harv.  L.  Rev.  56.  "  The  writer  [.T.  B.  Ames]  lias  discovered  no  case  in  whicli  a 
phiintiff  succeeded  in  an  action  of  covenant,  where  the  claim  was  for  a  sum  certain, 
antecedent  to  the  sixteenth  century  ; "  but  in  the  above  action  of  debt  to  wiiicii  "  the 
writer"  refers,  decided  in  the  Queen's  Bench,  the  ])hiintiff's  riglit  to  elect  between 
covenant  and  debt  is  expressly  declared.  Pollock  and  Maitland  pay  high  tribute 
to  the  accuracy  of  Dean  Ames's  research  by  assenting  freely  to  his  conclusion.  2 
Pollock  and  Maitland,  216. 

2  Martin,  42. 


136  CASES    ON   COMMON-LAW   PLEADING. 

GALE   V.   NIXON   AND   NIXON. 

Supreme  Court  of  New  York.     1826. 

Keported  6  CowEN,  445. 

Covenant  Defined. 

A  sealed  recognition  of  an  unsealed  contract  will  not  make  that  contract  a 
covenant. 

On  error  from  the  C.  P.  of  Tioga.  The  action  in  the  court  be- 
low was  indebitatus  assumpsit  by  the  plaintiff  against  the  defend- 
ants. The  declaration  contained  counts  for  land.s  bargained  and 
sold  ;  for  lands  bargained,  sold,  and  possession  given  ;  and  lands 
sold  and  conveyed  ;  with  the  money  counts.  Plea,  the  general 
issue. 

On  the  trial  in  the  court  below,  the  plaintiff  relied  on  articles  of 
agreement  signed  and  sealed  by  the  plaintiff  only  ;  and  delivered 
to  and  accepted  by  the  defendants,  dated  April  14,  1821.  These 
articles  purported  to  be  by  both  parties  ;  naming  the  plaintiff  as  of 
one  part;  and  the  defendants,  W.  and  G.  Nixon,  as  of  the  other. 
The  plaintiff,  for  the  consideration  of  $300,  to  him  paid,  and  of 
$500  to  be  paid,  as  thereinafter  mentioned,  covenanted  to  convey, 
within  two  years,  at  his  own  costs  and  charges,  two  described  par- 
cels of  land,  of  60  and  80  acres,  to  the  defendants  in  fee ;  and  the 
defendants  covenanted  to  pay  the  plaintiff,  on  the  execution  of  the 
conveyance,  $500.  It  was  also  agreed,  that  the  defendants  might 
take  immediate  possession  of  the  premises,  and  continue  so  in  pos- 
session, taking  the  profits,  till  the  conveyance  should  be  executed. 
On  the  articles  was  an  indorsement,  dated  May  31,  1822,  under  the 
hand  and  seal  of  J.  &  W.  Nixon,  stating  that  they  had,  on  the  part 
of  W.  &  G.  Nixon,  the  defendants,  with  tlie  consent  of  the  plaintiff, 
entered  into  an  agreement  with  T,  Astley  for  the  purchase  of  one  of 
the  described  parcels  (the  80  acre  lot),  and  given  their  bond  to  Astley, 
for  the  balance  on  that  lot,  $391.42  ;  and  that  they  did  thereby 
discharge  the  plaintiff  from  so  much  of  his  agreement  as  bound 
him  to  convey  this  described  parcel.  Afterwards,  the  defendant 
paid  this  balance  to  Astley,  who  owned  the  80  acre  lot,  and  took 
a  deed  of  him,  within  two  years  from  the  date  of  the  articles.  The 
payment  to,  and  conveyance  by  Astley,  were  pursuant  to  the  agree- 
ment and  understanding  to  both  the  parties  to  this  suit ;  who  agreed 
that  the  payment  of  the  $391.42  should  apply  on  the  articles 
between  them.     A  few  weeks  after  the  date  of  the  articles,  the 


ACTIONS    BEFORE    THE   STATUTE    OF    WESTMINSTER   II.  137 

defendants  took  possession  of  both  parcels ;  and  remained  in  pos- 
session up  to  the  time  of  the  triaL  The  plaintift'  had  caused  a 
deed  with  warranty  to  be  tendered  to  the  defendants,  for  the  60 
acre  lot,  before  suit  brought  in  the  court  below ;  but  more  than 
two  years  from  the  date  of  the  articles.  This  deed  was  produced 
ready  for  them,  at  the  trial. 

Tlie  defendants  moved  the  court  below  for  a  nonsuit,  on  this 
[among  other  grounds]  that  the  articles  being  sealed,  the  action 
should  have  been  covenant. 

E.  Dana,  for  the  plaintiff  in  error. 

A.  Collins,  contra. 

Curia}  per  Sutherland,  J.  "  The  plaintiff  was  nonsuited  at  the 
trial,  his  right  to  recover  being  objected  to  on  three  grounds :  2. 
That  if  it  was  a  valid  contract,  it  being  sealed,  the  action  should 
have  been  covenant.  .  .  .  Assumpsit  was  the  proper  form  of  action. 
Covenant  will  lie  only  when  the  instrument  is  actually  signed  and 
sealed  by  the  party,  or  by  his  authority.  A  recognition  of  the  con- 
tract, though  in  writing  and  under  seal,  will  not  make  it  a  covenant. 
If  the  instrument  by  which  the  original  contract  is  admitted,  con- 
tain, in  itself,  a  specification  of  the  terms,  and  consideration  of  the 
contract,  an  action  perhaps  might  be  sustained  upon  that ;  and  in 
such  case,  if  it  was  under  seal,  the  action  must  be  either  debt  or 
covenant. 

"The  plaintiff  was  improperly  nonsuited,  and  the  judgment  must 
be  reversed.  Judgment  reversed." 


NURSE  V.  FRAMPT0N.2 

In  thk  King's  Bench.     1694.* 

Reported  1   Salkeld,  214.     s.  c.  1  Ld.  Raymond,  28. 

The  bare  signing  and  sealing  of  an  agreement  makes  it  a  covenant. 

Debt  for  £25,  and  declares  that,  by  deed  between  him  and  the 
defendant,  it  was  agreed,  that  the  gray  nag  of  the  defendant,  be- 
tween the  day  of  the  date  thereof,  and  the  last  of  August,  a  day's 
notice  being  given  to  the  plaintiff,  should  ride  from  Hyde  Park 
Corner  to  the  first  house  in  Reading,  in  three  liours  for  £50  bet  on 

1  So  much  of  the  opinion  as  does  not  rehite  to  the  definition  of  a  covenant  is 
omitted.    Tiie  arguments  of  counsel  are  also  omitted. 

■•^  So  much  of  the  case  as  does  not  relate  to  the  right  to  sue  upon  a  covenant  is 
omitted.  —  Ed. 

3  In  tlie  report  in  Lord  Raymond,  28,  tlie  case  is  given  as  of  Midi.  Term,  6  William 
and  Mary,  while  in  1  Salkeld,  214,  it  is  given  as  Pasc.  6  William  III. 


138  CASES   ON   COMMON-LAW   PLEADING. 

each  side,  on  the  forfeiture  of  £25,  and  avers,  that  the  defendant 
gave  not  a  day's  notice,  and  that  the  horse  did  not  ride ;  the  de- 
fendant craves  oyer  of  the  deed,  which  was.  It  is  agreed  that  a  gray 
nag,  etc.  In  witness  whereof  we  have  hereunto  set  our  hands  and 
seals.  Et  nota  ;  they  were  not  otherwise  named  in  the  deed.  Here- 
upon the  defendant  pleaded  that  the  plaintiff  absconded  for  felony 
from  such  a  day  till  after  the  first  of  August,  so  that  he  could  not 
give  notice.  To  this  there  was  a  replication  and  rejoinder  both  im- 
pertinent, and  a  demurrer ;  whereupon  it  was  objected,  that  bare 
setting  names  and  seals  would  not  make  them  parties,  so  as  to 
have  this  action.  Vide  2  Inst.  673  ;  3  Cro.  59  ;  2  Eo.  22.  But  the 
court  held,  1st.  That  the  cases  were  not  alike,  and  that  an  action 
would  lie  by  the  bare  signing  and  sealing.  .  .  .  Judgment  for  the 
plaintiff. 

MOORE   V.  JONES. 
In  the  King's  Bench.     1728. 
Reported  2  Strange,  814. 
Apt  words  of  sealing  must  be  used  in  a  declaration  in  covenant. 

Error  of  a  judgment  in  C.  B.  in  an  action  of  covenant  wherein 
the  plaintiff  declared,  that  the  defendant  per  quoddam  scriptum 
suum  factum  apud  Westm'  concessit  to  the  plaintiff  an  annuity  ^;ro 
consilio  impendendo,  and  assigns  the  breach  in  non-payment  for  a 
certain  time.  Upon  oyer,  which  was  set  out  in  hcec  -verba,  and 
concluded  with,  In  witness  whereof  I  have  hereunto  set  my  hand 
and  seal;  the  defendant  pleaded,  that  during  that  time  the  plaintiff 
gave  no  counsel ;  and  on  demurrer  there  was  judgment  by  default 
for  want  of  a  joinder,  and  in  B.  R  general  errors  assigned. 

Eohinson,^:)?'^  quer'  in  errore,  objected,  that  the  plaintiff  had  not 
in  his  declaration  entitled  himself  to  an  action  of  covenant  it  not 
being  shown  that  the  grant  was  by  deed,  without  which  covenant 
will  not  lie.  3  Leon.  192  ;  Cro.  Car.  180,  209.  Here  is  no  sigillo  suo 
sigillat' ;  and  the  word  factum  here  must  be  taken  to  be  an  ad- 
jective, to  make  sense  of  the  words  apud  Wcstm' ;  as  assumpsit 
indeed  might  lie  upon  such  a  writing.  Cro.  Eliz.  117,  571;  3  Lev. 
234. 

Hussey,  contra.  The  oyer  must  be  taken  as  part  of  the  declara- 
tion, and  by  that  it  appears  there  was  a  sealing.  The  words  con- 
venit  ft  concessit  imply  a  deed.  2  Vent.  106,  150  ;  Palm.  173  ;  4 
Leon.  173,175;  2  Roll.  Eep.  228;  1  Lutw.  333;  Godb.  125;  Cro. 
Car.  209;   Cro.  Jac.  420 ;   Cro.  El.  737;  2  Lutw.  1667.     In  5  Co. 


ACTIONS   BEFORE   THE   STATUTE   OF    WESTMINSTER   II.  139 

51  b,  it  is  said,  a  pension  cannot  be  without  a  deed,  and  why  then 
shall  it  not  be  implied  of  an  annuity  ?  Pasch.  8  Geo.,  Atkinson  v. 
Coatsworth,^^^/'  iudeuturam  convenit  was  held  good.  The  word  con- 
ventio  is  a  technical  word,  and  the  Register  is  only  quod  teneut 
conventionem.  The  oyer  may  be  taken  either  as  part  of  the  decla- 
ration or  plea.  Cro.  Jac.  679;  Carthew,  513.  And  the  plea  of  non 
imjJendidit  consilium  admits  the  deed  so  far  that  in  evidence  it  need 
not  be  proved.    Cro.  Jac.  682 ;  124  Cro.  Car.  209. 

[Raymond]  C.  J.  None  of  the  cases  come  up  to  this,  where  the 
word  factum,  being  joined  to  apud  Westm'  renders  it  impossible 
to  be  taken  as  a  substantive.  Convenit  in  a  declaration  would 
never  do  alone ;  and  though  it  is  alone  in  the  Register,  yet  that  is 
only  a  short  description  of  the  nature  of  the  cause,  to  be  explained 
more  at  large  when  the  plaintiff  comes  to  count  upon  it.  I  do  not 
see  the  plea  has  made  it  good. 

Page,  J.  If  scri^jtum  does  not  signify  a  deed  (as  nobody  will 
pretend  it  does),  here  is  nothing  else  to  import  it ;  the  oyer  does 
not  prove  it  was  actually  sealed,  for  everybody  knows  the  words.  In 
witness,  etc.,  are  in  the  instrument  before  it  is  so  much  as  signed 
by  the  party.  And  indeed  oyer  of  a  sealing  was  never  heard  of 
before. 

Reynolds,  J.  I  think  this  declaration  is  not  to  be  maintained. 
Anciently  the  words  svjillatiim  et  delihcratum  were  required.  But 
now  it  is  held  well  enough  to  call  it  factum,  indentura,  scriptum 
indentatum,  which  imply  the  circumstances  of  sealing  and  delivery. 
A  concessit  solvere  lies  in  Bristol,  and  yet  the  word  concessit  does 
not  imply  a  deed.  Nor  is  there  anything  in  the  plea  which  makes 
the  declaration  to  be  better  than  upon  the  face  of  it. 

Probyn,  J.  I  do  not  think  convenit  a  better  word  than  promisit, 
for  if  the  circumstances  of  sealing  and  delivery  were  shown,  jjromisit 
would  be  well  enough.  The  word  scriptum  alone  will  not  make  it 
to  be  a  deed,  and  there  is  nothing  else  left  to  imply  it.  Ut  per 
curiam.     The  judgment  was  reversed. 

HOLDER   V.   TAYLOR. 

Rkported  Hobart,  12. 

Covenants  may,  by  the  use  of  apt  words,  be  implied  as  well  as  express. 

Holder  brought  an  action  of  covenant  against  Taylor ;  and  de- 
clared for  a  lease  for  years  made  by  the  defendant  by  the  word 
deinisi  which  imports  a  covenant ;  and  then  shows  that,  at  the 
time  of  the  lease  made,  the  lessor  was  not  seised  of  the  land  but  a 


140  CASES    ON    COMMON-LAW   PLEADING. 

stranger,  and  so  the  covenant  in  law  broken ;  but  he  did  not  lay- 
any  actual  entry  by  force  of  his  lease,  nor  any  ejectment  of  the 
stranger,  nor  any  claiming  under  him :  whereupon  it  was  objected 
that  no  action  of  covenant  could  lie,  because  there  was  no  expul- 
sion. But  the  whole  court  was  of  opinion  that  action  did  lie  ;  for 
the  breach  of  the  covenant  was,  in  that  the  lessor  had  taken  upon 
him  to  demise  that  which  he  could  not ;  for  the  word  demisi  im- 
ports a  power  of  letting,  as  dedi  a  power  of  giving.  And  it  is  not 
reasonable  to  enforce  the  lessee  to  enter  upon  the  land  and  so  to 
commit  a  trespass.  But  if  it  were  an,  express  covenant  for  quiet 
enjoying,  perhaps  it  were  otherwise. 

M'VOY   V.  WHEELER   et  ah 

SupuEME  Court  of  Alabama.     1837. 

Eepokted  6  Porter,  201. 

Covenant  does  not  Ue  upon  a  contract  made  under  seal,  and  later  materially 
changed  by  parol. 

Campbell,  for  plaintiff  in  error. 

Thornton,  contra. 

Collier,  C.  J.  Several  questions  were  raised  in  the  Circuit  Court 
upon  the  demurrers  to  the  declaration  and  pleas,  which  were  so 
disposed  of,  as  to  make  it  necessary  for  an  issue  of  fact  to  be  tried 
by  the  jury,  who  found  a  verdict  for  the  plaintiffs  on  which  judg- 
ment was  rendered.  At  the  trial,  a  bill  of  exceptions  was  taken  by 
the  defendant  below,  who  prosecutes  a  writ  of  error  to  this  court, 
and  assigns  the  judgment  on  the  demurrers  and  the  decision  of  the 
court  excepted  to,  as  causes  for  reversal. 

We  shall  only  consider  the  sufficiency  of  the  declaration,  which 
presents  the  qviestion  whether  an  action  of  covenant  will  lie  upon 
an  agreement  under  seal  (to  perform  certain  work),  which  has  been 
modified,  or  the  time  of  performance  enlarged  by  parol. 

Covenant  can  only  be  maintained  upon  a  writing  under  seal.  If 
a  contract  be  unattested  by  a  seal,  or  is  unwritten,  the  action  by 
which  redress  can  be  had,  for  a  nonperformance,  is  debt  or  assumpsit, 
or  either,  according  to  the  subject-matter.  If  nev/  terms  are  intro- 
duced into  a  contract,  other  duties  imposed,  or  another  day  provided 
for  its  consummation,  it  is  clear  that  the  original  contract  does  not 
remain  unimpaired,  so  that  an  action  would  lie  for  a  breach  of  its 
stipulations.  If,  then,  no  action  could  be  maintained  upon  the 
original  contract,  when  thus  modified,  we  think  it  follows  that  the 
present  action  is  misconceived.  For  though  the  modifications  are 
set  out  in  the  declaration,  yet  they  are  shown  to  be  by  parol,  and 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMIXSTEU   II.  141 

cannot,  according  to  the  premises  we  have  assumed,  be  made  the 
basis  either  in  whole  or  in  part  of  an  action  of  covenant. 

The  case  of  Littler  v.  Holland  ^  was  an  action  of  covenant,  upon 
an  ngreenient  under  seal,  to  build  two  houses  by  a  certain  day.  It 
appeared  on  the  trial  that  the  time  of  performance  was  enlarged  by 
parol,  and  that  the  houses  were  built  within  the  enlarged  time. 
This  evidence,  it  was  held,  did  not  support  the  allegation  in  the 
declaration,  and  the  plaintiff  was  nonsuited. 

So,  in  Brown  v.  Miller,^  an  action  of  debt  was  brought  on  a  bond 
to  submit  to  arbitration.  The  condition  limited  the  time  for  the 
arbitrator  to  make  his  award.  The  declaration  alleged  that  the 
time  was  enlarged  by  mutual  consent,  and  that  the  award  was 
made  within  that  time.  On  demurrer,  it  was  determined  tliat  the 
remedy  on  the  bond  was  gone,  by  the  failure  to  make  the  award 
within  the  time  contemplated  by  its  condition.  To  the  same 
effect,  also,  is  the  case  of  Freeman  v.  Adams.^ 

In  Phillips  d  al.  v.  Rose  ^  the  plaintiff  agreed  to  build  an  oil  mill 
within  a  prescribed  time,  which  was  enlarged  by  parol,  and  the  work 
completed  within  the  enlarged  time.  The  court  held  that  evi- 
dence of  the  enlargement  would  not  support  the  declaration.  And 
in  Jewell  et  al.  v.  Schroeppel  *  the  court  considers  the  law  as  settled, 
"  that  the  plaintiffs,  inasmuch  as  they  had  not  performed,  within 
the  time  stipulated  by  the  original  contract,  could  not  recover  upon 
the  covenants  contained  in  it.  They  could  not,  in  such  an  action, 
give  evidence  of  an  extension  of  the  time." 

In  Langworthy  v.  Smith,^  the  Supreme  Court  of  New  York  re- 
affirm the  previous  decisions  of  that  court,  on  the  point,  and  con- 
sider it  as  beyond  doubt  that  a  parol  agreement  to  enlarge  the  time 
for  the  performance  of  covenants  is  good ;  and  that  by  an  enlarge- 
ment the  remedy  upon  the  covenant  itself  is  lost  and  must  be 
sought  upon  the  agreement  enlarging  the  time  of  the  performance. 

In  the  case  at  bar,  the  declaration  shows  that  the  contract  was 
so  materially  varied,  and  the  labor  of  the  defendants  so  greatly  in- 
creased, that  they  could  not  perform  it  until  several  months  after 
the  expiration  of  the  day  therefor  appointed.  It  will,  therefore,  fol- 
low that  the  action  cannot  be  maintained,  and  that  the  plaintiffs 
must  resort  to  their  remedy  upon  the  parol  agreement,  making  the 
covenant,  so  far  as  material,  inducement  to  the  action.  The  judg- 
ment is  reversed.*' 

1  3  T.  T{.  590.  *  9  Johns.  Eep.  115. 

^  8  Johus.  Rep.  392.  *  4  Cowen,  565. 

6  2  Wend.  587. 
6  The  reporter's  statement  of  facts  is  omitted. 


142  CASES   ON    COMMON-LAW   TLEADING. 

BENNUS   V.   GUYLDLEY. 

In  the  King's  Bench.     1618. 

Reported  Cro.  Jac.  505. 

1.  Covenant,  not  assumpsit,  lies  for  breach  of  a  specialty. 

2.  The  declaration  in  covenant  need  set  forth  only  so  much  of  the  deed  as 
is  necessary  for  the  maintenance  of  the  action. 

Action  upon  the  case.  Whereas  the  defendant  recovered  against 
him  £7  10s.  for  costs  and  damages,  and  upon  that  judgment  the 
plaintiff  paid  to  him  £7,  and  the  defendant  made  him  a  release  of 
that  judgment,  and  by  his  deed  covenanted  that  he  would  withdraw 
all  process  of  execution  for  that  debt ;  that  the  defendant  intending 
unjustly  to  vex  him,  against  this  release,  and  against  his  promise  in 
the  said  writing,  the  20  June,  15  Jac.  I.,  sued  a  capias  ad  satisfacien- 
diun  against  the  plaintiff  for  this  debt,  returnable  in  Trinity  Term 
following,  which  he  delivered  to  the  sheriff  to  execute ;  who  by 
force  thereof,  afterward,  namely,  the  20  July,  15  Jac.  I.,  arrested 
him  and  detained  him  in  prison  until  he  paid  the  £7  10s.  to  his 
damage,  etc. 

The  defendant  demanded  oyer  of  the  deed,  which  was  entered  in 
hcec  verba  ;  wherein  was  the  clause  of  release  and  covenant  to  with- 
draw the  process  of  execution ;  and  also  another  covenant  which 
was  not  mentioned,  namely,  to  acknowledge  satisfaction  upon  the 
plaintiff's  cost,  upon  request. 

The  defendant  pleaded  hereto  that  the  sheriff  did  not  arrest  him 
by  his  appointment. 

This  plea  being  vitious,  the  plaintiff  demurred ;  and  upon  argu- 
ment the  defendant  did  not  maintain  his  plea,  but  took  exceptions 
to  the  declaration. 

Secondly,^  that  he  ought  to  have  had  an  action  upon  the  case, 
upon  the  promise  to  withdraw  process  of  execution  ;  and  if  he  had 
extended,  yet  an  assumpsit  lies  not  thereupon,  because  it  is  by  deed, 
and  so  he  ought  to  have  an  action  of  covenant,  and  not  an  assumpsit. 
And  of  that  opinion  was  the  whole  court  as  to  that  point.^ 

Fourthly,  it  was  objected  that  the  declaration  was  not  good,  be- 
cause he  declares  upon  a  deed,  and  recites  but  parcel,  whereas  he 
ousht  to  show  the  whole  deed.  Sed  non  allocatur  ;  for  he  men- 
tions  as  much  as  serves  for  his  purpose  in  this  action,  and  the 
residue  shown  doth  not  alter  it.  Wherefore,  for  the  first  and  third 
exception,  it  was  adjudged  for  the  defendant. 

1  The  first  exception  was  that  he  ought  to  have  relieved  himself  by  audita  querela. 
*  Thirdly,  It  was  objected  that  it  appears  by  the  plaintiffs  own  showing  that  the 
sheriff  arrested  him  long  after  the  return  of  the  writ. 


ACTIONS    BEFORE   THE    STATUTE   OF   WESTMINSTER   II.  143 

GREENE   i'.  HORNE. 

In  the  King's  Bench.     1694. 

Reported  1  Salkeld,  197. 

The  declaration  in  an  action  on  a  covenant  must  not  set  forth  matter  not 
contained  in  the  deed  itself,  so  as  to  alter  the  case. 

In  covenant  the  plaintiff  declared  that  A.,  being  indebted  to  him, 
and  arrested  at  his  suit,  the  defendant,  in  consideration  that  he 
would  order  the  bailiff  to  let  A.  go  at  large,  undertook  and  cove- 
nanted with  the  plaintiff  to  bring  in  the  body  of  the  said  A.,  and 
deliver  him  into  the  custody  of  the  said  bailiff,  such  a  day,  etc. 
The  defendant  prayed  oyer  of  the  deed,  which  was,  I  (the  defend- 
ant) do  promise  and  engage  myself  to  bring  in  the  body  of  A.  to 
the  custody  of  B.  bailiff,  such  a  day ;  and  thereupon  it  was  de- 
murred. Et  per  Cur.  First,  The  plaintiff  cannot  set  forth  matter 
of  fact  in  his  declaration  not  contained  in  the  deed  itself,  so  as  to 
alter  the  case ;  therefore,  all  such  matter  of  fact  so  alleged  or  averred 
is  immaterial.     8  Eep.  151. 

Secondly.  The  plaintiff'  is  no  party  to  the  deed,  nor  so  much  as 
named  in  it,  and  though  covenant  may  be  brought  on  a  deed-poll, 
yet  the  party  must  be  named  in  the  deed.     1  Kol.  Ab.  517. 

ANONYMOUS. 

Extract. 

Reported  Y.  B.  48  Edward  III.  2,  pl.  4.    Anno  1355. 

"  I  never  heard  that  any  one  should  have  a  writ  of  covenant 
against  executors,  nor  against  other  person  but  the  very  one  who 
made  the  covenant,  for  a  man  cannot  oblige  another  person  to 
a  covenant  by  his  deed  except  him  who  was  a  party  to  the 
covenant." 


CHAPTER   III. 

The  Statute  of  Westminster  II.,  1285  a.d.,  13  Edward  I.  ch.  24. 
THE   PARENT   OF    CASE,   TROVER,   AND   ASSUMPSIT. 


Section  I. 
CASE. 


Trespass  on  the  case  was  summoned  into  being  to  meet 
the  shortcomings  of  the  actions  which  preceded  it;  and 
which,  down  to  the  year  1285,  were  all  that  an  English 
suitor  had  at  his  command. 

We  have  seen  that  debt  was  unsatisfactory  because  it  lay 
only  for  a  sum  certain;  that  covenant  was  miserably 
inefficient,  because  it  was  confined  to  specialties ;  and  that 
hence  there  was  no  action  ex  contractu  to  recover  an  unliqui- 
dated sum  due  by  virtue  of  a  simple  contract.  Example, 
to  recover  money  for  work  done  under  an  implied  contract. 
X.,  a  tramp  strolling  by  a  hayfield,  saw  the  laborers  there 
vainly  striving  to  get  the  hay  under  shelter  before  an  ap- 
proaching storm  arrived.  X.,  without  words,  jumped  over 
the  fence,  and  the  hay  Avas  then  with  his  help  safely  housed. 
What  could  X.  recover  for  his  labor  ?     Nothing. 

So  in  the  realm  of  torts,  detinue  could  be  overcome  by 
oath  helpers;  the  exactness  of  the  description  required 
made  it  a  difficult  remedy ;  and  trespass  was  worthless  for 
him  who  had  been  damaged  by  a  merely  consequential  in- 
jury. Example,  if  plaintiff  fell  over  a  log  negligently  left 
in  the  highway  and  was  hurt,  he  could  recover  nothing. 

But  if  there  were  no  remedies  broad  enough  to  guard 
such  rights,  why  were  not  new  remedies  invented?  We 
must  resort  to  the  history  of  case  for  answer.  The  history 
of  case  is  divisible  into  three  distinct  periods.     1.   Before 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      145 

the  Provisions  of  Oxford.  2.  After  the  Provisions  of  Ox- 
ford and  before  the  Statute  of  Westminster  II.  3.  After 
the  Statute  of  Westminster  11.  The  characteristic  feature 
of  each  period  is  some  modification  of  the  right  to  issue 
new  writs  and  thus  to  create  new  actions. 

1.  Before  the  Provisions  of  Oxford,  a  new  form  of  action 
might  easily  be  invented. 

2.  In  1258,  there  were  promulgated  the  Provisions  of 
Oxford,  which  commanded  the  chancellor  to  issue  no  more 
writs,  except  writs  "  of  course,"  without  command  of  the 
king  and  his  council  present  with  him.  This  finally  ended 
the  right  to  issue  special  writs,  and  at  last  fixed  the  com- 
mon writs  in  unchangeable  form.  Big.  His.  of  Pro.  197, 
198. 

Now  since  the  suitor  who  desired  a  remedy  for  his  wrong 
had  to  have  a  writ  to  start  proceedings,  unless  he  could  find 
in  the  king's  registry  of  writs  a  precedent  exactly  suited 
to  his  case,  he  was  without  a  remedy.  The  writ  book  may 
be  compared  with  a  shop  to  which  customers  came  with 
samples  to  buy  wares  ;  unless  the  suitor  could  find  a  formed 
writ  to  match  his  exact  set  of  facts,  he  had  to  abandon  his 
search,  and  go  his  way  unsatisfied.  It  is  now  a  legal  maxim 
that  where  there  is  a  right,  there  is  a  remedy  —  it  might 
then  have  been  said,  there  is  no  right  without  a  writ. 
Ashby  V.  White,  2  Lord  Raymond,  938 ;  s.c.  i^ost. 

3.  This  led  to  the  Statute  of  Westminster  II.,  which  pro- 
vided that  where  there  was  a  wrong  which,  though  analo- 
gous, was  not  within  the  scope  of  the  writs  in  common  use, 
the  chancery  clerks  might  issue  a  like  writ  in  similar  cases, 
adapted  to  the  circumstances  of  the  particular  case. 

Thus,  before  the  statute,  if  A.  threw  a  stick  at  B.  and  it 
hit  him,  A.  was  guilty  of  a  trespass.  But  if  A.  simply 
threw  a  stick  into  the  road,  and  B.  fell  over  it  and  was 
injured,  A.  was  not  guilty  of  a  trespass.  The  statute  gave 
a  remedy  in  the  second  case  as  well  as  in  the  first.  The 
new  action  was  called,  "Trespass  on  the  case;"  and  lies  to 
recover  damages  for  an  indirect  and  consequential  injury 
to  one's  person  or  property  or  other  right. 

10 


1-16  CASES   ON   COMMON-LAW   PLEADING. 

HISTORICAL. 

Power  to  create  New  Writs  before  the  Provisions  of  Oxford. 

IN    THE    AGE   OF   GLANVILL. 

"A  new  form  of  action  might  be  easily  created,  A  few  words 
said  by  the  chancellor  to  his  clerks  — '  Such  writs  as  this  are  for 
the  future  to  be  issued  as  of  course '  —  would  be  as  effectual  as  the 
most  solemn  legislation.^  As  yet  there  would  be  no  jealousy  be- 
tween the  justices  and  the  chancellor,  nor  would  they  easily  be 
induced  to  quash  his  writs."     1  Pollock  and  Maitlaiid,  149. 

IN  THE   AGE  OF  JOHN. 

Early  Instances  of  Actions  in  the  Nature  of  Actions  on  the 

Case  before  the  Provisions  of  Oxford. 

Norfolk.     Trinity,  a.  d.  1200.'-^ 

Matilda,  who  was  the  wife  of  Roger  le  Passur,  complains  that 
John  de  Mewick  has  deforced  her  of  her  land  in  Pransham  [?] 
which  she  recovered  against  him  by  judgment  of  the  court,  so  that 
no  one  dare  till  that  land  because  of  him,  nor  could  she  deal  with 
it  in  any  way  because  of  him.  John  comes  and  defends  the  force 
and  injury  and  all  of  it;  and  because  the  sheriff  testified  that  he 
believed  what  she  said  to  be  true,  it  is  considered  that  John  do 
defend  himself  with  the  twelfth  free  hand,  in  five  weeks  after 
Michaelmas.     Pledge  of  the  law,  Eoger  de  Bintree. 

Hertford.       Michaelmas,  a.  d.  1201  .^ 

Peter  de  Paxton  complains  that  Osbert  Male  unjustly  took  his 
oxen  and  sold  them  at  Waltham  Fair,  which  (oxen)  were  worth  five 
marks,  so  he  says,  and  besides  (Osbert)  had  troubled  him  in  other 
ways,  on  account  of  which  his  land  was  untilled,  so  that  he  was 
damaged  through  Osbert  to  the  value  of  twenty  marks  ;  and  this  he 
offers  (to  prove),  etc.,  by  sufficient  suit,  which  he  produced.  And 
Osbert  conies  and  defends  the  whole  of  it,  word  by  word,  against 
(Peter),  and  against  his  suit,  etc.     It  is  considered  that  (Osbert)  do 

1  ["  Rot.  Clans.  Joh.  p.  32.  A  writ  of  120.5,  which  in  technical  terms  is  'a  writ  of 
entry  sur  disseisin  iu  the  per,"  has  against  it  the  note  '  Hoc  breve  de  cetero  erit  de 
cursu.' "] 

•■2  Sel.  Soc.  (Sel.  Civ.  PI.)  pi.  7. 

3  Ibid.  pi.  86.     Cf.  McKelvey,  59. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      147 

defend  himself  twelve-(handed,  i.  e.  with  eleven  compurgators). 
Pledge  for  making  the  law,  William  liussell.  A  day  is  given  on 
the  octave  of  S.  Martin. 

An  Earlt  Action  in  the  Nature  of  Deceit.^ 

NORTHAMPTONSIIIKE    EyRE,  A.  D.   1202. 

The  jurors  say  that  Andrew,  Sureman's  son,  appealed  Peter 
Leofwin's  son,  Thomas  Squire  and  William  Oildene  of  robbery. 
And  he  does  not  prosecute.  So  he  and  Stephen  Despine  and  Bald- 
win Long  are  in  mercy,  and  the  appellees  go  without  day. 

Afterwards  comes  Andrew  and  says  that  (the  appellees)  impris- 
oned him  by  the  order  of  William  Malesoures  in  the  said  William's 
house,  so  that  he  sent  to  the  sheriff  that  the  sheriff  might  deliver 
him,  whereupon  the  sheriff  sent  his  serjeant  and  others  thither, 
who  on  coming  there  found  him  imprisoned  and  delivered  him, 
and  he  produces  witnesses,  to  wit,  Nicholas  Portehors  and  Hugh, 
Thurkill's  son,  who  testify  that  they  found  him  .imprisoned,  and  he 
vouches  the  sheriff  to  warrant  this.  And  the  sheriff,  on  being 
questioned,  says  that  in  truth  he  sent  thither  four  lawful  men 
with  the  Serjeant  on  a  complaint  made  by  Nicholas  Portehors  on 
Andrew's  behalf.  And  those  who  were  sent  thither  by  the  sheriff 
testify  that  they  found  him  at  liberty  and  disporting  himself  in 
William's  house.  Therefore  it  is  considered  that  the  appeal  is 
null,  (and  Andrew  is  in  mercy)  for  his  false  complaint  and  Nicholas 
Portehors  and  Hugli,  Thurkill's  son,  are  in  mercy  for  false  testi- 
mony. Andrew  and  Hugh  are  to  be  in  custody  until  they  have 
found  pledges  [for  their  amercement]. 

The  First  Reported  Case  upon  a  Writ  of  Deceit.^ 
Reported  21  Edward  I.  44,  a.  d.  1293.     In  the  Common  Bench. 

John  (Lovetot)  brought  a  writ  of  debt  against  B.,  and  recovered 
the  debt  by  judgment  of  the  king's  court.  John  had  a  judicial 
writ  to  the  sheriff  to  cause  the  debt  to  be  levied  out  of  B.'s  chat- 
tels. John  Lovetot  sent  to  the  sheriff  his  attorney  named  Eobert 
to  get  the  money ;  and  the  sheriff  could  not  find  anything  but  corn 
growing  on  the  land  ;  so  he  delivered  to  him  the  corn  which  he 
found  growing  on  the  land ;  and  the  sheriff  returned  that  he  had 
executed  the  king's  command.     Then  came  John  Lovetot  and  said 

1  Sel.  Soc.  (Sel.  PI.  Cor.)  pi.  4.5. 

-  Big.  L.  C.  'J'ort.s,  18.  The  last  reported  oa.'se  on  a  writ  of  deceit  is  I'asley  v. 
Freeman.  Here  tlie  distinction  lietwecn  "  deceit "  and  "  in  the  nature  of  deceit " 
brL'ak.s  down.      I'asley  v.  Freeman,  3  'J'erm  Reports,  .51  (1789). 


148  CASES    ON    COMMON-LAW   PLEADING. 

the  sheriff  had  returned  falsely  and  in  deceit  of  the  court ;  where- 
upon he  had  a  writ  of  deceit  out  of  the  Rolls  to  compel  the  sheriff 
to  appear.  The  sheriff  came  and  said  that  he  had  made  a  good  re- 
turn, and  that  he  had  executed  the  king's  command  ;  and  that  he 
found  only  corn  on  the  land,  and  that  he  delivered  to  John  Love- 
tot's  attorney,  whom  he  had  sent,  the  wheat  barley,  etc.,  which 
he  found  growing  on  the  land,  ready,  etc.  —  John  Lovetot.  What 
have  you  to  show  it?  —  The  sheriff.  It  is  not  for  us  to  have 
the  acquittance.  Ready,  etc.  by  a  good  jury.  Hertford.  Did  you 
send  your  attorney  or  not?  —  Lovetot  admitted  freely  that  he  sent 
him  there,  but  he  said  that  the  sheriff  did  not  deliver  anything  to 
him ;  and  (said  he).  See  here  the  attorney  who  will  tell  you  the 
same  thing. — The  attorney  came  and  said  that  he  (John  Lovetot) 
made  him  his  attorney,  but  that  the  sheriff  did  not  deliver  any- 
thing to  him;  and  that  he  was  ready  to  aver.  —  Hertford.  You 
cannot  be  a  party  to  the  averment  that  he  made  you  his  attorney 
to  receive  the  monies ;  for  you  are  not  a  party  to  this  writ  of 
deceit.  —  John  Lovetot.  Sir,  it  seems  that  he  ought  to  be  party  to 
the  averment  that  he  did  not  deliver  anything  to  him,  because  the 
sheriff  says  that  he  did  deliver  to  him,  etc.  —  Hertford.  Lovetot, 
will  you  prosecute  your  plaint,  or  not  ?  —  He  would  not  accept  the 
averment,  but  prayed  that  the  attorney  might  make  the  averment. 
"Wherefore  it  was  adjudged  that  the  sheriff'  should  go  without  day 
and  that  John  should  be  in  mercy. 

PROVISIONS   OF   OXFORD.     [Anno  1258.] 

This  the  Chancellor  of  England  sicorc.  —  That  he  will  seal  no 
writ,  excepting  writs  of  course,  without  the  commandment  of  the 
king  and  of  his  council  who  shall  be  present.  Nor  shall  he  seal  a 
gift  under  the  great  seal,  nor  under  the  great  (  ),^  nor  of 

escheats,  without  the  assent  of  the  great  council  or  of  the  major 
part.  And  that  he  will  seal  nothing  which  may  be  contrary  to  the 
ordinance  which  is  made  and  shall  be  made  by  the  twenty-four,  or 
the  major  part.  And  that  he  will  take  no  fee  otherwise  than  what 
is  given  to  the  others.  And  he  shall  be  given  a  companion  in  the 
form  which  the  council  shall  provide.     Ann.  Monast.  448.^ 

Of  the  Chancellor.  —  The  like  of  the  chancellor.  That  he  at  the 
end  of  the  year  answer  concerning  his  time.  And  that  he  seal  noth- 
ing out  of  course  by  the  sole  will  of  the  king.  But  that  he  do  it  by 
the  council  which  shall  be  around  the  king.     Ann.  Monast.  45  L^ 

1  A  blank  space  in  the  manuscript.  ^  gtubbs's  "  Select  Charters,"  393. 

3  Ibid.  394. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      149 

("In  the  year  1258  the  provisions  of  Oxford  were  promulgated; 
two  separate  clauses  of  which  bound  the  chancellor  to  issue  no 
more  writs,  except  writs  *  of  course,'  without  command  of  the  king 
and  of  his  council  present  with  him.  This,  with  the  growing  inde- 
pendence of  the  judiciary  on  the  one  hand,  and  the  settlement  of 
legal  process  on  the  other,  terminated  the  right  to  issue  special 
writs,  and  at  last  fixed  the  common  writs  in  unchangeable  form ; 
most  of  which  had  by  this  time  become  developed  into  the  final 
form  in  which  for  six  centuries  they  were  treated  as  precedents  of 
declarations."     Big.  Hist.  Proced.  197,  198.) 

STATUTE    WESTMINSTER    TI.     13    EDWARD   I.,   CAP.   24. 

[Anno    1285.] 

In  like  cases  like  writs  be  grantable. 

II.  (3)  And  whensoever  from  henceforth  it  shall  fortune  in 
the  chancery,  that  in  one  case  a  writ  is  found,  and  in  like  case  fall- 
ing under  like  law,  and  requiring  like  remedy,  is  found  none ;  the 
clerks  of  the  chancery  shall  agree  in  making  the  writ ;  (4)  or  the 
plaintiffs  may  adjourn  it  until  the  next  Parliament,  and  let  the 
cases  be  written  in  which  they  cannot  agree,  and  let  them  refer 
themselves  until  the  next  Parliament;  and  by  consent  of  men 
learned  in  the  law,  a  writ  shall  be  made,  lest  it  might  happen 
after  that  the  court  should  long  time  fail  to  minister  justice  unto 
complainants.^ 

COOKE  V.  GIBBS. 

Supreme  Judicial  Court  of  Massachusetts.     1807. 

Reported  3  Massachusetts,  193. 

The  statute  Westminster  II.  operates  as  part  of  the  common  law  iu 
Massachusetts,  to  the  extent  of  making  new  writs  grantable. 

Debt  on  a  judgment  of  the  court  of  Common  Pleas,  for  this 
county.  The  writ  directs  the  sheriff  to  attach  the  goods  or  estate 
of  the  defendant,  and  to  summon  him  to  appear,  etc.     The  declara- 

1  Writ  of  Trespass  on  the  Case.  —  If  W.  etc.  then  put  I.  etc.  to  show  wherefore, 
whereas  he  the  said  I.  undertook  to  make  and  huild  three  carriages  for  conveying  vict- 
uals and  tackle  of  him  the  said  W.  to  parts  beyond  sea,  for  a  certain  sum  of  mouey, 
one  part  whereof  he  beforehand  received,  within  a  certain  term  between  them  agreed ; 
he  the  same  I.  did  not  care  to  make  and  l)uild  the  carriages  aforesaid  within  the  term 
aforesaid,  by  which  he,  the  said  W.,  hath  wholly  lost  divers  his  goods  aiid  chattels,  to 
the  value  of  one  hundred  marks,  which  ought  to  have  been  conveyed  in  the  carriages 
aforesaid,  for  want  thereof  to  the  great  damage  of  him  the  said  W.,  as  it  is  said  :  and 
have,  etc.  —  Fitz.  N.  B.  94  A. 


150  CASES   ON    COMMON-LAW    PLEADING. 

tion,  after  reciting  the  judgment,  and  alleging  that  four  several  execu- 
tions issued  upon  it,  goes  on  to  state  the  delivery  of  the  fourth  to 
the  sheriff,  who  committed  the  defendant  to  prison,  from  whence 
he  was  afterwards,  in  due  course  of  law,  liberated  by  force  of  "an  act 
for  the  relief  of  poor  prisoners  who  are  committed  by  execution  for 
debt."     1787,  c.  29. 

The  defendant  demurs  to  the  declaration,  and  assigns  the  follow- 
ing causes  of  demurrer,  namely  : 

1.  For  that  the  sheriff  in  and  by  the  writ  is  commanded  to  at- 
tach the  goods  or  estate  of  the  said  Solomon,  without  excepting  his 
wearing  apparel,  etc. 

2.  For  that  it  does  not  appear,  by  the  declaration  aforesaid,  that 
the  said  Solomon  was  legally  discharged  from  prison,  nor  that  a 
writ  of  execution  on  said  supposed  judgment  had  not  issued, 
after  the  supposed  discharge  of  the  said  Solomon,  and  was  not  in 
force  at  the  time  of  bringing  this  action. 

The  plaintiff  joins  in  demurrer. 

Bliss,  for  the  defendant,  contended  that  writs  must  follow  the 
forms  prescribed  by  the  law.  Our  statutes  furnish  no  such  form  as 
this,  which  commands  the  sheriff  to  attach  the  defendant's  goods, 
and  to  summon  him  to  appear.  It  is  in  fact  uniting  in  one  writ  the 
two  several  writs  of  attachment,  and  original  summons.  But  if  a 
plaintiff  may  thus  confound  the  difTferent  forms  of  writs,  it  is  con- 
ceived that  such  a  writ  cannot,  and  indeed  that  no  writ  whatever 
can  command  the  attachment  of  all  the  goods  without  exception,  of 
a  debtor  who  has  been  admitted  to  the  poor  prisoner's  oath,  as  it  is 
called,  since  the  statute  expressly  frees  from  the  operation  of  the 
original  judgment,  and  of  course  of  an  action  of  debt,  brought 
upon  such  judgment,  the  wearing  apparel  and  household  furniture, 
necessary  for  the  debtor,  his  wife  and  children,  and  tools  necessary 
for  his  trade  or  occupation. 

Sedgwick,  'j.  There  is  a  special  demurrer  to  the  declaration  in 
this  case,  and  the  first  cause  assigned  has  relation  to  the  writ  only. 
Whether  the  writ  is  good  or  not,  no  advantage  can  be  taken  of  its 
defects  under  a  demurrer  to  the  declaration.  If  the  defendant 
would  object  to  the  plaintiff's  writ,  he  must  do  it  by  pleading  in 
abatement.  If  he  had  so  pleaded  in  this  case,  it  is  possible  that 
the  objection  might  have  prevailed ;  for  when  a  statute  has  pre- 
scribed the  form  of  a  writ,  I  am  not  prepared  to  say  that  a  clerk  or 
attorney  has  authority  to  vary  from  that  form.  The  defendant,  by 
appearing  and  answering  to  the  declaration,  has,  according  to  the 
established  and  well-known  rules  of  pleading,  waived  all  objections 
to  the  writ. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       151 

Parsons,  C.  J.  Notwithstanding  the  defendant,  by  having  taken 
the  oath  prescribed  for  poor  prisoners,  has  been  liberated  from 
imprisonment  on  the  execution  issued  upon  the  judgment  disclosed 
in  this  count;  yet  an  action  of  debt  lies  on  this  judgment,  because 
the  statute  provides  that  it  shall  remain  in  force  to  all  intents  and 
purposes  ;  but  the  debtor's  body,  his  wearing  apparel  and  tools,  shall 
not  be  liable  to  execution. 

In  this  case  the  writ  commands  the  sheriff  to  attach  the  defend- 
ant's estate,  and  to  summon  him  to  answer ;  and  in  the  declaration 
the  plaintiff  has  averred  that  the  defendant  has  had  the  benefit 
of  the  poor  debtor's  oath.  There  is  a  demurrer  to  the  declaration. 
The  defendant  has  assigned  several  causes  of  demurrer.  One  is, 
that  the  sheriff  is  commanded  to  attach  the  defendant's  estate, 
without  excepting  his  wearing  apparel.  This  is  an  exception  to  the 
writ,  the  defects  of  which,  wlien  not  apparent  on  the  record,  must 
be  shown  by  a  plea  in  abatement.  But  if  the  writ  be  bad  and 
insufficient  upon  the  face  of  it,  tlie  court  may,  ex  officio,  quash  it. 
The  defendant  insists  that  the  statute  of  1784,  c.  28,  prescribing 
the  form  of  original  writs,  has  not  authorized  the  writ  in  this  case ; 
that,  pursuant  to  the  statute,  an  original  writ  in  debt  must  be  either 
against  the  estate  and  body  of  the  defendant,  or  only  a  summons  to 
appear,  and  that  this  writ  pursues  neither  of  the  forms. 

The  statutes  have,  in  several  cases,  prescribed  the  outlines  of  the 
forms  of  several  writs,  but  not  of  all  the  writs  in  use.  Where  the 
legal  remedy  sought  by  the  plaintiff  may  be  obtained  by  a  writ 
conforming  to  these  outlines,  he  must  sue  out  such  a  writ ;  and  if 
the  writ  he  shall  sue  materially  vary  from  those  outlines,  the  court 
may,  ex  officio,  abate  it.  But  when  the  remedy  he  is  entitled  to 
cannot  be  obtained  by  any  writ  conforming,  in  its  outlines,  to  those 
prescribed  by  statute,  it  has  been  the  ancient  and  constant  practice 
of  the  court  to  grant  him  a  writ,  by  •which  he  may  obtain  his 
remedy.  Thus  we  have  no  form  of  writs  of  error,  of  review,  or  of 
scire  facias  against  bail,  or  of  execution  in  dower  where  a  woman  has 
been  divorced  a  vinculo  ;  and  yet,  when  the  remedy  sought  required 
any  writ  of  these  kinds,  the  court  have  always  granted  it.  By  an 
ancient  English  statute,  the  masters  in  chancery,  whence  all  original 
writs  issued,  were  authorized  to  form  new  writs  in  new  cases,  that 
there  might  not  be  a  failure  of  justice.  In  this  State  that  author- 
ity, when  necessary,  has  been  exercised  by  the  court  issuing  the 
writ.  Thus,  when  an  act  passed,  directing  that  an  execution  should 
not  issue  against  the  body  of  a  sheriff  when  in  ofhce,  the  court  altered 
the  form  of  the  execution  given  by  statute,  so  as  to  conform  it  to 
this  act.     By  the  constitution,  no  representative  shall  be  arrested 


152  CASES    ON    COMMON-LAW   PLEADING. 

or  held  to  bail  on  mesne  process,  while  attending  the  General  Court, 
or  eundo  et  redeundo ;  but  his  estate  may  be  attached,  and  when 
the  plaintiff  would  attach  his  estate  to  secure  his  debt,  a  writ  of 
attachment  may  issue,  by  which  the  officer  is  commanded  to  at- 
tach the  estate  of  the  defendant,  and  to  summon  him.  By  law, 
executions  do  not  lie  against  the  bodies  or  estates  of  executors  or 
administrators,  on  judgments  against  them  for  the  debts  of  the 
deceased ;  and  executions  have  been  made  conformable  to  this  pro- 
vision of  law.  So  by  statute  of  1783,  c.  32,  s.  9,  writs  of  attachment 
shall  run  only  against  the  goods  or  estate  of  the  party  deceased,  in 
the  hands  of  his  executors  or  administrators,  and  not  against  their 
bodies.  According  to  this  section,  and  a  former  provincial  law,  of 
which  it  is  a  revision,  writs  have  frequently  issued,  commanding 
the  officer  to  attach  the  goods  or  estate  of  a  person  deceased,  and  to 
summon  the  executor  or  administrator. 

In  the  case  at  bar,  if  the  plaintiff  had  sued  out  a  common  writ  of 
attachment  against  the  estate  and  body  of  the  defendant,  the  writ, 
on  plea,  might  have  been  abated ;  if  he  had  sued  an  original  sum- 
mons, by  that  be  could  not  have  secured  the  debtor's  estate  to 
satin fy  his  judgment.  A  writ,  therefore,  in  this  form  is  the  only 
writ  adequate  to  the  remedy,  to  which  by  law  he  is  entitled. 

In  a  case  like  the  present,  the  plaintiff  having  sued  an  attach- 
ment in  this  special  form,  he  has  done  right  in  showing  the  exemp- 
tion of  the  defendant's  body,  in  order  to  entitle  himself  to  this 
special  writ.  If  he  had  sued  a  common  writ  of  attachment  against 
the  defendant's  body  and  estate,  it  could  not  be  abated,  but  by  the 
defendant's  plea ;  for  the  exemptions  being  in  his  favor,  he  may 
waive  the  benefit  of  them.  If  he  had  sued  an  original  summons, 
the  writ  could  not  have  been  abated;  but  the  defendant,  to  avail 
himself  of  these  exemptions,  might  have  pleaded  them,  so  as  to 
cause  an  execution  to  issue  with  the  exemptions  pleaded.  But  if 
the  plaintiff  has  gratuitously  inserted  in  his  declaration  allegations, 
which  will  entitle  him  to  this  special  writ,  it  cannot  give  the  de- 
fendant any  cause  of  complaint. 

And  the  objection  that,  upon  these  principles,  the  plaintiff  ought, 
in  his  writ,  to  have  excepted  from  attachment  the  defendant's 
wearing  apparel  and  his  tools,  does  not  appear  to  me  to  have  much 
weight.  It  sufficiently  appears  that  the  plaintiff  is  entitled  to  a  writ 
of  attachment  against  the  defendant's  goods  or  estate;  and  the 
precept  to  the  sheriff  must  be  construed  to  extend  to  such  estate 
only  as  is  by  law  liable  to  attachment  on  this  writ.  Thus  a  fieri 
facias  at  common  law  is  issued  against  the  goods  and  chattels  of  the 
debtor  without  any  exception  ;  but  if  the  sheriff  were  to  strip  the 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       153 

debtor's  wearing  apparel  from  his  body,  he  would  be  a  trespasser, 
for  such  apparel,  when  worn,  is  not  liable  to  the  execution.  Also, 
by  the  statute  of  1805,  c.  100,  certain  chattels  therein  described 
cannot  be  attached  upon  any  original  writ ;  yet  the  writ  of  attach- 
ment issues  in  the  usual  form,  without  including  an  exception  of 
these  chattels. 

The  causes  of  demurrer,  which  apply  to  the  declaration,  appear 
to  me  to  be  insufficient.  It  is  enough,  in  a  case  like  this,  to  allege 
the  discharge  in  general  terms  ;  and  if  an  alias  execution  had  is- 
sued, and  was  not  returnable,  the  defendant  ought  to  have  shown  it. 

It  is  the  opinion  of  the  court  that  the  declaration  is  good. 

Allen,  for  the  plaintiff. 


SCOPE   AND   CHARACTERISTICS   OF   CASE. 

For  what  injuries  does  an  action  on  the  case  lie  ? 

We  shall  deal  in  answering  this  question  with  three  dis- 
tinct groups  of  cases. 

Group  {a).  The  distinctive  characteristics  of  case  —  its 
undisputed  territory. 

Group  (b).     The  border-land  between  case  and  equity. 

Group  {c).     The  border-land  between  case  and  trespass. 

The  first  group  v/ill  be  satisfying ;  it  will  enunciate  a 
clear  distinction  between  trespass  on  the  case  and  trespass : 
trespass  is  the  remedy  for  a  direct  injury  to  the  plaintiff's 
person  or  property ;  case,  for  an  indirect  and  consequential 
injury  to  the  plaintiff's  person,  property,  or  other  right. 
The  second  and  third  groups  will  at  first  blush  be  con- 
fusing. The  second  group  will  deal  with  the  relationship 
between  equity  and  case.  In  Ashby  v.  White,  Holt,  C.  J., 
says  :  "  Where  the  common  law  gives  a  right,  it  gives  a 
remedy  to  assert  tliat  right."  In  Bird  v.  Randall,  Lord 
Mansfield  says  :  "  An  action  on  the  case  is  founded  on  the 
mere  justice  and  conscience  of  the  plaintiff's  case,  and  is  in 
the  nature  of  a  bill  in  equity,  and  in  effect  is  so."  Does 
this  mean  that  between  the  realms  of  case  and  equity  there 
lies  an  undefined,  neutral  ground  ? 

The  third  group  of  cases  deals  with  the  doubtful  border- 
land between  trespass  on  the  case  and  trespass.   In  Reynolds 


154  CASES   ON   COMMON-LAW    PLEADING. 

V.  Clark,  an  action  on  the  case,  the  Chief  Justice  says : 
"  We  must  keep  up  the  boundaries  of  actions  or  we  shall  in- 
troduce the  utmost  confusion."  In  Slater  v.  Baker,  an 
action  on  the  case,  the  court  say  :  "  It  is  said  the  defend- 
ants ought  to  have  been  charged  as  trespassers  vi  et  annis  ; 
the  court  wdll  not  look  with  eagle's  eyes  to  see  whether  the 
evidence  applies  exactly  or  not  to  the  case."  Are  these  in- 
consistent statements  ?  Does  the  second  tend  to  break 
down  the  barrier  between  trespass  on  the  case  and  trespass; 
a  barrier  which  the  first  seems  clearly  to  recognize  ? 

One  thing  is  certain  at  the  start :  trespass  on  the  case 
historically  was  created  to  occupy  other  fields  than  those  of 
trespass  ;  and  the  question  is,  has  case  been  forced  beyond 
its  early  confines  into  territory  that  was  pre-empted  before 
actions  on  the  case  were  ever  heard  of  ? 

(a)    The  Distinctive  Features  of  Case. 

QUICK   et  ux.  V.  CUTTER. 

Court  of  Common  Pleas,  Charlestown.     1692-93. 

Reported  Stearns  on  Real  Actions,  501. 

John  Quick  of  London  and  Elizabeth  his  wife,  by  their  attorney, 
John  Carthew,  plaintiffs,  v.  William  Cutter,  defendant :  In  a  plea 
of  trespass  on  the  case,  for  that  the  said  William  Cutter  doth  with- 
hold and  detain  from  the  plaintiffs,  in  the  right  of  the  said  Eliza- 
beth, the  possession  of  twenty  acres  of  land,  be  the  same  more  or 
less,  bounded,  etc.,  and  of  one  messuage  house,  wherein  the  said 
William  Cutter  doth  now  inhabit  and  dwell,  and  one  barn,  garden, 
yard,  and  orchard,  and  also  one  water  corn-mill  and  the  appur- 
tenances thereto  appertaining,  etc.  Both  parties  appearing,  the 
plaintiffs  were  nonsuited ;  for  that  an  action  of  trespass  on  the 
case  lieth  not  in  this  case.  The  plaintiffs  appealed  to  the  next 
Superior  Court,  etc. 

[This  is  the  earliest  case  which  has  been  noticed  (in  Massachu- 
setts) of  an  exception  to  the  form  of  the  writ  being  allowed.  The 
court  considered  it  an  action  of  trespass,  and  not  an  action  on  the 
case.     Stearns,  Eeal  Actions,  501.] 


THE   PARENT    OF   CASE,   TUOVKlt,    AND   ASSUMPSIT.  155 

BUTTERFIELD   v.  FORRESTER. 

In  the  King's  Bench.     1809. 

Reported  11  East,  60.     1809. 

In  case  for  negligence,  two  things  are  requisite  :  (1)  negligence  on  the 
defendant's  part :  (2)  due  care  on  the  plaintiff's. 

This  was  an  action  on  the  case  for  obstructing  a  highway,  by 
means  of  which  obstruction  the  plaintiff,  who  was  riding  along  the 
road,  was  thrown  down  with  his  horse,  and  injured,  etc.  At  the 
trial  before  Bayley,  J.,  at  Derby,  it  appeared  that  the  defendant,  for 
the  purpose  of  making  some  repairs  to  his  house,  which  was  close 
by  the  roadside  at  one  end  of  the  town,  had  put  up  a  pole  across 
this  part  of  the  road,  a  free  passage  being  left  by  another  branch 
or  street  in  the  same  direction.  That  the  plaintiff  left  a  public 
house  not  far  distant  from  the  place  in  question  at  8  o'clock  in  the 
evening  in  August,  when  they  were  just  beginning  to  light  candles, 
but  while  there  was  light  enough  left  to  discern  the  obstruction  at 
100  yards  distance  ;  and  the  witness,  who  proved  this,  said  that  if 
the  plaintiff  had  not  been  riding  very  hard  he  might  have  observed 
and  avoided  it ;  the  plaintiff,  however,  who  was  riding  violently,  did 
not  observe  it,  but  rode  against  it,  and  fell  with  his  horse  and  was 
much  hurt  in  consequence  of  the  accident;  and  there  was  no  evi- 
dence of  his  being  intoxicated  at  the  time.  On  this  evidence 
Bayley,  J.,  directed  the  jury,  that  if  a  person  riding  with  reasonable 
and  ordinary  care  could  have  seen  and  avoided  the  obstruction, 
and  if  they  were  satisfied  that  the  plaintiff  was  riding  along  the 
street  extremely  hard,  and  without  ordinary  care,  they  should  find 
a  verdict  for  the  defendant;  which  they  accordingly  did. 

Vaughan,  Serjt.,  now  objected  to  this  direction,  on  moving  for  a 
new  trial ;  and  referred  to  Buller's  Ni.  Pri,  26,^  where  the  rule  is 
laid  down,  that  "  if  a  man  lay  logs  of  wood  across  a  highway, 
though  a  person  may  with  care  ride  safely  by,  yet  if  by  means 
thereof  my  horse  stumble  and  fling  me,  I  may  Ijring  an  action." 

Bayley,  J.  The  plaintiff  was  proved  to  be  riding  as  fast  as  his 
horse  could  go,  and  this  w^as  through  the  streets  of  Derby.  If  he 
had  used  ordinary  care  he  must  have  seen  the  obstruction ;  so  that 
the  accident  appeared  to  happen  entirely  from  his  own  fault. 

Lord  Ellenborough,  C.  J.  A  party  is  not  to  cast  himself  upon  an 
obstruction  which  has  been  made  by  the  fault  of  another,  and  avail 

1  The  book  cites  Carth  194  and  451,  iu  the  margin,  which  references  do  not  bear 
on  the  point  here  in  question. 


156  CASES   ON    COMMOX-LAW   PLEADING. 

himself  of  it,  if  lie  do  not  himself  use  common  and  ordinary  caution 
to  be  in  the  right.  In  cases  of  persons  riding  upon  what  is  con- 
sidered to  be  the  wrong  side  of  the  road,  that  wouVi  .iipt  authorize 
another  purposely  to  ride  up  against  them.  One  person  being  in 
fault  will  not  dispense  with  another's  using  ordinary  care  for  him- 
self. Two  things  must  concur  to  support  this  action,  an  obstruc- 
tion in  the  road  by  the  fault  of  the  defendant,  and  no  want  of  or- 
dinary care  to  avoid  it  on  the  part  of  the  plaintiff. 

Per  curiam.  Eule  refused. 


BEDINGFIELD   v.   ONSLOW. 
In  the  Common  Pleas.     1603. 
Reported  3  Levinz,  209. 
Case  lies  by  a  reversioner  for  an  indirect  injury  to  his  reversion. 

Case  brought,  and  declares,  that  he  was  seised  in  fee  of  a  close, 
and  the  defendant  possessed  of  another  close  next  adjoining,  be- 
tween which  closes  ran  a  rivulet,  and  that  the  defendant  stopped 
the  rivulet,  whereby  he  surrounded  and  drowned  the  plaintiff's  close, 
so  that  the  timber  trees  (of  the  plaintiff's),  namely,  an  hundred  timber 
trees  of  oak,  and  an  hundred  of  ash,  became  putrified,  rotten,  and 
perished.  The  defendant  pleads,  that  one  Studman,  long  before  the 
time  when,  etc.,  and  at  the  time  when,  etc.,  was  possessed  of  the 
said  close  by  virtue  of  a  lease  to  him  thereof  made  by  the  plaintiff's 
father,  and  that  he  had  paid  to  Studman  20s.  which  he  had  accepted 
in  satisfaction  of  the  said  trespass.  Whereupon  the  plaintiff  de- 
murs ;  and  after  arguments  at  the  bar,  and  on  consideration  of  the 
books  of  19  Hen.  VI.  12;  12  Hen.  VI.  4 ;  2  lio\.  Abr.  551;  Cro. 
Eliz.  55.  Love  against  Piggot;  it  was  resolved  by  Charlton,  Levinz, 
and  Street,  who  only  were  in  court,  that  this  was  no  plea  ;  for  the 
plaintiff,  in  respect  of  the  prejudice  done  to  the  reversion,  may  main- 
tain an  action  ;  and  also  Studman  in  respect  of  the  possession,  and 
so  another  may  in  respect  of  the  shade,  shelter,  and  fruit  of  the 
trees,  for  the  same  trespass ;  and  the  satisfaction  given  to  one  is 
no  bar  to  the  other.  But  trespass  during  the  plaintiff's  term  could 
not  be  had,  it  being  founded  merely  on  the  possession. 


THE   PARENT   OF    CASE,   TROVER,    AND    ASSUMPSIT.  157 

f  lff,foQ,      SCOTT   V.  SHEPHERD. 
In  the  Common  Pleas.     1773. 
Reported  2  William  Blackstone,  892. 
Trespass  lies  for  a  direct  injury  to  plaintiff's  person. 

Trespass  and  assault  for  tlirowing,  casting,  and  tossing  a  lighted 
squib  at  and  against  the  plaintiff,  and  striking  him  therewith  on  the 
face,  and  so  burning  one  of  liis  eyes  that  he  lost  the  sight  of  it, 
whereby,  etc.  On  not  guilty  pleaded,  the  cause  came  on  to  be  tried 
before  Nares,  J.,  last  Summer  Assizes,  at  Bridgewater,  when  the 
jury  found  a  verdict  for  the  plaintiff  with  £100  damages,  subject  to 
the  opinion  of  the  court  on  this  case :  —  On  the  evening  of  the  fair 
day  at  Milborne  Port,  28th  October,  1770,  the  defendant  threw  a 
lighted  squib,  made  of  gunpowder,  etc.,  from  the  street  into  the 
market-house,  which  is  a  covered  building,  supported  by  arches, 
and  enclosed  at  one  end,  but  open  at  the  other  and  both  the  sides, 
where  a  large  concourse  of  people  were  assembled ;  which  lighted 
squib,  so  thrown  by  the  defendant,  fell  upon  the  standing  of  one 
Yates,  who  sold  gingerbread,  etc.  That  one  Willis  instantly,  and 
to  prevent  injury  to  himself  and  the  said  wares  of  the  said  Yates, 
took  up  the  said  lighted  squib  from  off  the  said  standing,  and  then 
threw  it  across  the  said  market-house,  when  it  fell  upon  another 
standing  there  of  one  Eyal,  who  sold  the  same  sort  of  wares,  who 
instantly,  and  to  save  his  own  goods  from  being  injured,  took  up 
the  said  lighted  squib  from  off  the  said  standing,  and  then  threw  it  to 
another  part  of  the  said  market-house,  and,  in  so  throwing  it,  struck 
the  plaintiff  then  in  the  said  market-house  in  the  face  therewith, 
and  the  combustible  matter  then  bursting,  put  out  one  of  the  plain- 
tiffs eyes.     Qucere.     If  this  action  be  maintainable  ? 

This  case  was  argued  last  term  by  Glyn,  for  the  plaintiff,  and 
Burland,  for  the  defendant ;  and  this  term,  the  court,  being  divided 
in  their  judgment,  delivered  their  opinions  seriatim. 

Nares,  J.,  was  of  opinion,  that  trespass  would  well  lie  in  the 
present  case.  That  the  natural  and  probable  consequence  of  the 
act  done  by  the  defendant  was  injury  to  somebody,  and  therefore 
the  act  was  illegal  at  common  law.  And  the  throwing  of  squibs  has, 
by  statute  Westm.  3,  been  since  made  a  nuisance.  Being  therefore 
unlawful,  the  defendant  was  liable  to  answer  for  the  consequences, 
be  the  injury  mediate  or  immediate.  2 1  Hen .  VII.  28,  is  express  that 
malus  animus  is  not  necessary  to  constitute  a  trespass.     So,  too,  1 


158  CASES    ON    COMMON-LAW    PLEADING. 

Stra.  596  ;  Hob.  134  ;  T.  Jones,  205  ;  6  Edvv.  IV.  7,  8  ;  Fitzh.  Tres- 
pass, 110.  The  principle  I  go  upon  is  what  is  laid  down  in  Rey- 
nolds and  Clark,  Stra.  634,  that  if  the  act  in  the  first  instance  be 
unlawful,  trespass  will  lie.  Wherever  therefore  an  act  is  unlawful 
at  first,  trespass  will  lie  for  the  consequences  of  it.  So,  in  12  Hen. 
IV.  trespass  lay  for  stopping  a  sewer  with  earth,  so  as  to  overflow 
the  plaintiff's  land.  In  26  Hen.  VIII.  8,  for  going  upon  the  plaintiff's 
land  to  take  the  boughs  off  which  had  fallen  thereon  in  lopping. 
See  also  Hardr.  60  ;  Reg.  108,  95  ;  6  Edw.  IV.  7,  8  ;  1  Ld.  Raym.  272  ;  ; 
Hob.  180  ;  Cro.  Jac.  122,  43  ;  F.  N.  B.  202,  [91,  g].  I  do  not  think 
it  necessary  to  maintain  trespass,  that  -the  defendant  should  per- 
sonally touch  the  plaintiff ;  if  he  does  it  by  a  mean  it  is  sufficient. — 
Quifacit  per  aliud  facit  per  se.  He  is  the  person,  who,  in  the  pres- 
ent case,  gave  the  mischievous  faculty  to  the  squib.  That  mis- 
chievous faculty  remained  in  it  till  the  explosion.  No  new  power 
of  doing  mischief  was  communicated  to  it  by  Willis  or  Ryal.  It  is 
like  the  case  of  a  mad  ox  tamed  loose  in  a  crowd.  The  person  who 
turns  him  loose  is  answerable  in  trespass  for  whatever  mischief  he 
may  do.  The  intermediate  acts  of  Willis  and  Ryal  will  not  purge 
the  original  tort  in  the  defendant.  But  he  who  does  the  first  wrong 
is  answerable  for  all  the  consequential  damages.  So  held  in  the 
King  and  Huggins,  2  Lord  Raym.  1574;  Parkhurst  and  Foster,  1 
Lord  Raym.  480  ;  Rosewell  and  Prior,  12  Mod.  639.  And  it  was 
declared  by  this  court,  in  Slater  and  Baker,  M.  8  Geo.  III.  2  Wils. 
359,  that  they  would  not  look  with  eagle's  eyes  to  see  whether  the 
evidence  applies  exactly  or  not  to  the  case ;  but  if  the  plaintiff  has 
obtained  a  verdict  for  such  damages  as  he  deserves,  they  will  estab- 
lish it  if  possible. 

Blackstone,  J.,  was  of  opinion,  that  an  action  of  trespass  did  not 
lie  for  Scott  against  Shepherd  upon  this  case.  He  took  the  settled 
distinction  to  be,  that  where  the  injury  is  immediate,  an  action  of 
trespass  will  lie;  where  it  is  only  consequential,  it  must  be  an  action 
on  the  case:  Reynolds  and  Clarke,  Lord  Raym.  1401,  Stra.  634; 
Haward  and  Bankes,  Burr.  1114;  Harker  and  Birkbeck,  Burr.  1559. 
The  lawfulness  or  unlawfulness  of  the  original  act  is  not  the  cri- 
terion ;  though  something  of  that  sort  is  put  into  Lord  Raymond's 
mouth  in  Stra.  635,  where  it  can  only  mean,  that  if  the  act  then 
in  question,  of  erecting  a  spout,  had  been  in  itself  unlawful,  trespass 
might  have  lain ;  but  as  it  was  a  lawful  act  (upon  the  defendant's 
own  ground),  and  the  injury  to  the  plaintiff  only  consequential,  it 
must  be  an  action  on  the  case.  But  this  cannot  be  the  general 
rule ;  for  it  is  held  by  the  court  in  the  same  case,  that  if  I  throw  a 
locT  of  timber  into  the  highway  (which  is  an  unlawful  act),  and 


THE    PARENT    OF   CASE,   TROVER,   AND    ASSUMPSIT.  159 

another  man  tumbles  over  it,  and  is  hurt,  an  action  on  the  case  only- 
lies,  it  being  a  consequential  damage ;  but  if  in  throwing  it  I  hit 
another  man,  he  may  bring  trespass,  because  it  is  an  immediate 
wrong.  Trespass  mny  sometimes  lie  for  the  consequences  of  a  law- 
ful act.  If  in  lopping  my  own  trees  a  bough  accidentally  falls  on 
my  neighbor's  ground,  and  I  go  thereon  to  fetch  it,  trespass  lies. 
This  is  the  case  cited  from  6  Edw.  IV.  7.  But  then  the  entry  is  of 
itself  an  immediate  wrong.  And  case  will  sometimes  lie  for  the  con- 
sequence of  an  unlawful  act.  If  by  false  imprisonment  I  have  a 
special  damage,  as  if  I  forfeit  my  recognizance  thereby,  I  shall  have 
an  action  on  the  case  ;  per  Powell,  J.,  11  Mod.  180.  Yet  here  the 
original  act  was  unlawful,  and  in  the  nature  of  trespass.  So  that 
lawful  or  unlawful  is  quite  out  of  the  case ;  the  solid  distinction  is 
between  direct  or  immediate  injuries  on  the  one  hand,  and  mediate 
or  consequential  on  the  other.  And  trespass  never  lay  for  the 
latter.  If  this  be  so,  the  only  question  will  be,  whether  the  injury 
which  the  plaintiff  suffered  was  immediate,  or  consequential  only ; 
and  I  hold  it  to  be  the  latter.  The  original  act  was,  as  against 
Yates,  a  trespass ;  not  as  against  Eyal,  or  Scott.  The  tortious  act 
was  complete  when  the  squib  lay  at  rest  upon  Yates's  stall.  He,  or 
any  bystander,  had,  I  allow,  a  right  to  protect  themselves  by  remov- 
ing the  squib,  but  should  have  taken  care  to  do  it  in  such  a  manner 
as  not  to  endamage  others.  But  Shepherd,  I  think,  is  not  answer- 
able in  an  action  of  trespass  and  assault  for  the  mischief  done  by 
the  squib  in  the  new  motion  impressed  upon  it,  and  the  new  direc- 
tion given  it,  by  either  Willis  or  Eyal ;  who  both  were  free  agents, 
and  acted  upon  their  own  judgment.  This  differs  it  from  the  cases 
put  of  turning  loose  a  wild  beast  or  a  madman.  They  are  only  in- 
struments in  the  hand  of  the  first  agent.  Nor  is  it  like  diverting 
the  course  of  an  enraged  ox,  or  of  a  stone  thrown,  or  an  arrow  glanc- 
ing against  a  tree ;  because  there  the  original  motion,  the  vis  ivi- 
pressa,  is  continued,  though  diverted.  Here  the  instrument  of 
mischief  was  at  rest,  till  a  new  impetus  and  a  new  direction  are  given 
it,  not  once  only,  but  by  two  successive  rational  agents.  But  it  is 
said  that  the  act  is  not  complete,  nor  the  squib  at  rest,  till  after  it 
is  spent  or  exploded.  It  certainly  has  a  power  of  doing  fresh  mis- 
chief, and  so  has  a  stone  tliat  has  been  thrown  against  my  windows, 
and  now  lies  still.  Yet  if  any  person  gives  that  stone  anew  motion, 
and  does  farther  mischief  with  it,  trespass  will  not  lie  for  that 
against  the  original  thrower.  No  doubt  but  Yates  may  maintain 
trespass  against  Shepherd.  And,  according  to  the  doctrine  contended 
for,  so  may  Eyal  and  Scott.  Three  actions  for  one  single  act !  nay, 
it  may  be  extended  in  infinitum.     If  a  man  tosses  a  football  into  the 


160  CASES    ON   COMMON-LAW    PLEADING, 

street,  and,  after  being  kicked  about  by  one  hundred  people,  it  at 
last  breaks  a  tradesman's  windows  ;  shall  he  have  trespass  against 
the  man  who  tirst  produced  it  ?  Surely  only  against  the  man 
who  gave  it  that  mischievous  direction.  But  it  is  said,  if  Scott 
has  no  action  against  Shepherd,  against  whom  must  he  seek 
his  remedy?  I  give  no  opinion  whether  case  would  lie  against 
Shepherd  for  the  consequential  damage ;  though,  as  at  present  ad- 
vised, I  think,  upon  the  circumstances,  it  would.  But  I  think,  in 
strictness  of  law,  trespass  would  lie  against  Kyal,  the  immediate 
actor  in  this  unhappy  business.  Both  he  and  Willis  have  exceeded 
the  bounds  of  self-defence,  and  not  used  sufficient  circumspection  in 
removing  the  danger  from  themselves.  The  throwing  it  across  the 
market-house,  instead  of  brushing  it  down,  or  throwing  [it]  out  of 
the  open  sides  into  the  street  (if  it  was  not  meant  to  continue  the 
sport,"  as  it  is  called),  was  at  least  an  unnecessary  and  incautious 
act.  Not  even  menaces  from  others  are  sufficient  to  justify  a  tres- 
pass against  a  third  person  ;  much  less  a  fear  of  danger  to  either  his 
goods  or  his  person;  —nothing  but  inevitable  necessity;  Weaver 
and  Ward,  Hob.  134;  Dickenson  and  Watson,  T.  Jones,  205  ;  Gil- 
bert and  Stone,  Al.  35,  Styl.  72.  So  in  the  case  put  by  Brian,  J., 
and  assented  to  by  Littleton  and  Cheke,  C.  J.,  and  relied  on  in  Kaym. 
467.  —  "  If  a  man  assaults  me,  so  that  I  cannot  avoid  him,  and  I  lift 
up  my  staff  to  defend  myself,  and,  in  lifting  it  up,  undesignedly  hit 
another  who  is  behind  me,  an  action  lies  by  that  person  against  me  ; 
and  yet  I  did  a  lawful  act  in  endeavoring  to  defend  myself."  But 
none  of  these  great  lawyers  ever  thought  that  trespass  would  lie,  by 
the  person  struck,  against  him  who  first  assaulted  the  striker.  The 
cases  cited  from  the  Eegister  and  Hardres  are  all  of  immediate 
acts,  or  the  direct  and  inevitable  effects  of  the  defendants'  immediate 
acts.  And  T  admit  that  the  defendant  is  answerable  in  trespass  for 
all  the  direct  and  inevitable  effects  caused  by  his  own  immediate 
act.  —  But  what  is  his  own  immediate  act  ?  The  throwing  the 
squib  to  Yates's  stall.  Had  Yates's  goods  been  burnt,  or  his  person 
injured,  Shepherd  must  have  been  responsible  in  trespass.  But  he 
is  not  responsible  for  the  acts  of  other  men.  The  subsequent  throw- 
ing across  the  market-house  by  Willis  is  neither  the  act  of  Shep- 
herd, nor  the  inevitable  effect  of  it;  much  less  the  subsequent 
throwing  by  Ryal.  Slater  and  Barker  was  first  a  motion  for  a  new 
trial  after  verdict.  In  our  case  the  verdict  is  sus]H3n(Ied  till  the  de;^ 
terniinatiQrLQf -the  court  And  though  after  verdict  the  court  will 
not  look  with  eagle's  eyes  to  spy  out  a  variance,  yet,  when  a  question 
is  put  by  the  jury  upon  such  a  variance,  and  it  is  made  the  very 
point  of  the  cause,  the  court  will  not  wink  against  the  light,  and  say 


THE    PARENT    OF   CASE,    TROVER,    AND    ASSUMPSIT.  161 

that  evidence,  which  at  most  is  only  applicable  to  an  action  on  the 
case,  will  maintain  an  action  of  trespass.  2.  It  was  an  action  on 
the  case  that  was  brought,  and  the  court  held  the  special  case  laid 
to  be  fully  proved.  So  that  the  present  question  could  not  arise 
upon  that  action.  3.  The  same  evidence  that  will  maintain  tres- 
pass may  also  frequently  maintain  case  but  not  e  converso.  Every 
action  of  trespass  with  a  j»er  quod  includes  an  action  on  the  case. 
I  may  bring  trespass  for  the  immediate  injury,  and  subjoin  a  j^er 
quod  for  the  consequential  damages  ;  —  or  may  bring  case  for  the 
consequential  damages,  and  pass  over  the  immediate  injury,  as  in 
the  case  from  11  Mod.  180,  before  cited.  But  if  I  bring  trespass  for 
an  immediate  injury,  and  prove  at  most  only  a  consequential  dam- 
age, judgment  must  be  for  the  defendant;  Gates  and  Bailey,  Tr.  6 
Geo.  III.  2  Wils.  313.  It  is  said  by  Lord  Eaymond,  and  very  justlv, 
in  Eeynolds  and  Clarke,  "  We  must  keep  up  the  boundaries  of  ac- 
tions, otherwise  we  shall  introduce  the  utmost  confusion."  As  I 
therefore  think  no  immediate  injury  passed  from  the  defendant  to 
the  plaintiff  (and  without  such  immediate  injury  no  action  of  tres- 
pass can  be  maintained),  I  am  of  opinion,  that  in  this  action  jud<^- 
ment  ought  to  be  for  the  defendant. 

Gould,  J.,  was  of  the  same  opinion  with  Nares,  J.,  that  this  action 
was  well  maintainable.  —  The  whole  difficulty  lies  in  the  form  of 
the  action,  and  not  in  the  substance  of  the  remedy.  The  line  is 
very  nice  between  case  and  trespass  upon  these  occasions ;  I  am 
persuaded  there  are  many  instances  wherein  both  or  either  will  lie. 
I  agree  with  Brother  Nares,  that  wherever  a  man  does  an  unlawful 
act,  he  is  answerable  for  all  the  consequences ;  and  trespass  will  lie 
against  him,  if  the  consequence  be  in  nature  of  trespass.  But,  ex- 
clusive of  this,  I  think  the  defendant  may  be  considered  in  the  same 
view  as  if  he  himself  had  personally  thrown  the  squib  in  the  plain- 
tiff's face.  The  terror  impressed  upon  Willis  and  Eyal  excited  self- 
defence,  and  deprived  them  of  the  power  of  recollection.  What 
they  did  was  therefore  the  inevitable  consequence  of  the  defend- 
ant's unlawful  act.  Had  the  squib  been  thrown  into  a  coach  full 
of  company,  the  person  throwing  it  out  again  would  not  have  been 
answerable  for  the  consequences.  What  Willis  and  Ryal  did,  was 
by  necessity,  and  the  defendant  imposed  that  necessity  upon  them. 
As  to  the  case  of  the  football,  I  think  that  if  all  the  people  assem- 
bled act  in  concert,  they  are  all  trespassers.  1.  From  the  general 
mischievous  intent.  2.  From  the  obvious  and  natural  consequences 
of  such  an  act :  which  reasoning  will  equally  apply  to  the  case  be- 
fore us.  And  that  actions  of  trespass  will  lie  for  the  mischievous 
consequences  of  another's  act,  whether  lawful  or  unlawful,  appears 

11 


162  CASES    ON   COMMON-LAW   PLEADING. 

from  their  being  maintained  for  acts  done  in  the  plaintiff's  own  land  : 
Hardr.  60  ;  Courtney  and  Collet,  1  Lord  Raym,  272.  I  shall  not  go 
over  again  the  ground  which  Brother  Nares  has  relied  on  and  ex- 
plained, but  concur  in  his  opinion,  that  this  action  is  supported  by 
the  evidence. 

De.Grey,  C.  J.  This  case  is  one  of  those  wherein  the  line  drawn 
by  the  law  between  actions  on  the  case  and  actions  of  trespass  is 
very  nice  and  delicate.  Trespass  is  an  injury  accompanied  with 
force,  for  which  an  action  of  trespass  vi  et  armis  lies  against  the 
person  from  whom  it  is  received.  The.  question  here  is,  whether 
the  injury  received  by  the  plaintiff  arises  from  the  force  of  the 
original  act  of  the  defendant,  or  from  a  new  force  by  a  third  person. 
I  agree  with  my  Brother  Blackstone  as  to  the  principles  he  has  laid 
down,  but  not  in  his  application  of  those  principles  to  the  present 
case.  The  real  question  certainly  does  not  turn  upon  the  lawful- 
ness or  unlawfulness  of  the  original  act ;  for  actions  of  trespass  will 
lie  for  legal  acts  when  they  become  trespasses  by  accident ;  as  in 
the  cases  cited  of  cutting  thorns,  lopping  of  a  tree,  shooting  at  a 
mark,  defending  oneself  by  a  stick  which  strikes  another  behind, 
etc.  — They  may  also  not  lie  for  the  consequences  even  of  illegal  acts, 
as  that  of  casting  a  log  in  the  highway,  etc.  —  But  the  true  question 
is,  whether  the  injury  is  the  direct  and  immediate  act  of  the  defend- 
ant ;  and  I  am  of  opinion,  that  in  this  case  it  is.  The  throwing 
the  squib  was  an  act  unlawful  and  tending  to  affright  the  bystanders. 
So  far,  mischief  was  originally  intended ;  not  any  particular  mis- 
chief, but  mischief  indiscriminate  and  wanton.  Whatever  mischief 
therefore  follows,  he  is  the  author  of  it ;  —  Egreditur  personam,  as 
the  phrase  is  in  criminal  cases.  And  though  criminal  cases  are  no 
rule  for  civil  ones,  yet  in  trespass  I  think  there  is  an  analogy. 
Every  one  who  does  an  unlawful  act  is  considered  as  the  doer  of  all 
that  follows  ;  if  done  with  a  deliberate  intent,  the  consequence  may 
amount  to  murder;  if  incautiously,  to  manslaughter;  Fost.  261. 
So,  too,  in  1  Ventr.  295,  a  person  breaking  a  horse  in  Lincoln's  Inn 
Fields  hurt  a  man  ;  held,  that  trespass  lay  :  and,  2  Lev.  172,  that  it 
need  not  be  l^idi. scienter.  I  look  upon  all  that  was  done  subsequent 
to  the  original  throwing  as  a  continuation  of  the  first  force  and  first 
act,  which  will  continue  till  the  squib  was  spent  by  bursting.  And 
I  think  that  any  innocent  person  removing  the  danger  from  himself 
to  another  is  justifiable  ;  the  blame  lights  upon  the  first  thrower. 
The  new  direction  and  new  force  flow  out  of  the  first  force,  and  are 
not  a  new  trespass.  The  writ  in  the  Register,  95  a,  for  trespass  in 
maliciously  cutting  down  a  head  of  water,  which  thereupon  flowed 
down  to  and  overwhelmed  another's  pond,  shows  that  the  immediate 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       163 

act  need  not  be  instantaneous,  but  that  a  chain  of  effects  connected 
together  will  be  sufficient.  It  has  been  urged,  that  the  intervention 
of  a  free  agent  will  make  a  difference  ;  but  I  do  not  consider  Willis 
and  Eyal  as  free  agents  in  the  present  case,  but  acting  under  a  com- 
pulsive necessity  for  their  own  safety  and  self-preservation.  On 
these  reasons  I  concur  with  Brothers  Gould  and  Nares,  tliat  the 
present  action  is  maintainable. 

Postea  to  the  plaintiff. 


(b)   The  Border  Land  between  Case  and  Equity. 

ASHBY   V.   WHITE   et   al 

In  the  Queen's  Bench.     1703. 

Reported  1  Salkeld,  19. 

When  there  is  a  right,  the  law  will  give  a  remedy  to  vindicate  that  right. 

Action  upon  the  case  against  the  constables  of  Aylesbury,  and 
declares  that  the  king's  writ  issued  and  was  delivered  to  the  sheriff 
of  Bucks  for  election  of  knights  of  the  shire  and  burgesses  of  bor- 
oughs, to  serve  in  parliament ;  whereupon  the  sheriff  made  out  his 
precept  to  the  defendants,  being  constables  of  Aylesbury,  for  the 
election  of  two  burgesses  for  that  borough,  which  was  delivered, 
and  the  burgesses  duly  assembled  to  choose,  etc.,  and  that  the 
plaintiff  being  duly  qualified,  etc.,  offered  to  give  his  voice  for  Sir  T. 
Lee,  and  S.  Mayne,  Esq.,  but  the  defendants  obstructed  him  from 
voting,  and  refused  and  would  not  receive  his  vote,  nor  allow  it. 
Upon  not  guilty,  a  verdict  was  found  for  the  plamtiff,  and  after 
motion  in  arrest  of  judgment  the  court  gave  their  opinions 
seriatim. 

Gould,  J.,  Powys,  J.,  and  Powell,  J.,  held  the  action  not  main- 
tainable. 

Holt,  C.  J.,  contra.  He  held  that  the  plaintiff  had  a  right  to 
vote ;  that  a  freeholder  has  a  right  to  vote  by  reason  of  his  free- 
hold, and  it  is  a  real  right ;  and  the  value  of  his  freehold  was  not 
material,  till  8  H.  6,c.  7,  which  requires  it  should  be  40s.  per  annum; 
that  in  boroughs  they  have  a  right  to  vote  ratione  hurgagii:  And 
that  in  cities  and  corporations  it  is  a  personal  inheritance,  and 
vested  in  the  whole  corporation,  but  to  be  used  and  exercised  by  the 
particular  members,  and  that  such  a  franchise  cannot  be  granted 
but  to  a  corporation.  Hob.  14;  12  Co.  120;  Mo.  812.  And  this 
is  not  a  minimum  in  lege,  but  a  noble  privilege,  which  entitles  the 
subject  to  a  share  in  the  government  and  legislature.     No  laws  can 


164  CASES   ON   COMMON-LAW   PLEADING. 

be  made  to  affect  him  or  his  property  but  by  his  own  consent,  given 
in  person  if  he  be  chosen,  or  by  his  representative  if  he  is  a  voter. 
That  if  the  plaintiff  has  a  riglit,  he  must  in  consequence  have  a 
remedy  to  vindicate  that  right :  for  want  of  right  and  want  of 
remedy  is  the  same  thing.  If  a  statute  gives  a  right,  the  common 
Liw  will  give  a  remedy  to  maintain  that  right ;  a  fortiori,  where 
the  common  law  gives  a  right,  it  gives  a  remedy  to  assert  it.  This 
is  an  injury,  and  every  injury  imports  a  damage.  Violating  the 
right  of  another  by  a  scandalous  word  is  sufficient  damage  to  give 
an  action,  though  the  party  suffers  not  a  farthing,  and  the  pecuniary 
loss  be  nothing.  Where  parliamentary  matters  come  before  us,  as 
incident  to  a  cause  of  action  on  the  property  of  the  subject,  which 
we  in  duty  must  determine,  though  the  incident  matter  be  parlia- 
mentary, we  must  not  be  deterred,  but  are  bound  by  our  oaths 
to  determine  it.  There  can  be  no  such  method  by  petition  as  my 
brother  Powell  ^  speaks  of ;  nor  can  tlie  parliament  judge  of  this 
injury,  nor  give  damages  to  the  plaintiff  for  it.  But  judgment  was 
given  for  the  defendant. 

Note:  On  Friday  the  14th  of  January,  1703,  this  judgment  was 
reversed  in  the  House  of  Lords.  Trevor,  C.  J.,  and  Price  and  six- 
teen Lords  concurred  with  the  three  judges  in  B.  E.  The  rest  of 
the  judges  and  fifty  Lords  concurred  with  Holt,  C.  J.  Although  this 
matter  relates  to  the  parliament,  yet  it  is  an  injury  precedaneous  to 
the  parliament,  as  my  Lord  Hale  said  in  the  cause  of  Barnardiston 
V.  Soame. 

[The  student  may  with  profit  study  the  case  of  Ashby  v.  White 
as  reported  in  2  Ld.  Kaym.  938,  and  Holt's  Ptep.  524.  Salkeld's 
report  supra,  however,  brings  out  with  striking  vividness  the  great 
truth  of  the  case  —  "Where  there  is  a  right,  there  is  a  remedy."] 


BIRD   V.   RANDALL. 
In  the  King's  Bench.     1762. 
Reported  3  Burrows,  1345. 
Trespass  on  the  case  resembles  in  nature  a  bill  in  equity. 

This  was  a  case  reserved  at  nisi  prius  at  Guildhall,  upon  a  trial 
before  Lord  Mansfield,  in  an  action  upon  the  case  wherein  a  verdict 
was  given  for  the  plaintiff,  and  twenty  pounds  damages  assessed ; 
but  subject  to  the  opinion  of  the  court,  vipon  a  case  stated. 

1  Powell,  J.,  had  urged  "  that  the  right  of  election  of  members  mn.st  depend  upon 
the  riglit  of  the  electors  ;  and  the  former  the  parliament  are  to  decide,  and  the  plaintiff 
may  petition  the  parliament  to  determine  it ;  and  after  that  may  have  his  action,  but 
not  before ;  and  therefore  was  not  without  a  remedy." 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       165 

The  substance  of  the  case  stated  was  shortly  this. 

The  plamtiff  Bird  and  one  Mary  Hogg  were  silk- dressers,  and 
partners  in  trade.  And  articles  of  agreement  were  entered  into 
between  the  plaintiff  Bird  and  one  Burford,  dated  25th  of  August, 
1760;  whereby  Burford  covenanted  with  Bird  to  serve  the  plaintiff 
Bird  and  the  said  Mary  Hogg  and  the  survivor  of  them,  as  a  jour- 
ney-man in  their  said  trade  and  business  of  silk-dressers,  for  five 
years  from  the  date ;  and  to  work  at  the  usual  and  accustomed  hours 
daily,  and  not  to  discover  the  mysteries  of  the  trade,  or  the  secrets 
of  the  plaintiff  and  his  said  partner;  and  Bird  covenanted  to  pay 
Burford  weekly  twenty  shillings  a  week  for  his  work.  And  for  the 
true  performance  of  all  and  every  the  covenants  and  agreements 
contained  in  the  articles,  each  party  bound  himself  to  the  other  in 
the  penalty  of  one  hundred  pounds. 

The  case  then  goes  on,  and  states  that  Burford  accordingly  entered 
into  the  said  service,  under  the  said  articles;  and  that  he  continued 
therein  till  19th  of  September,  1761 ;  when  the  defendant,  knowing 
of  the  said  articles,  persuaded,  procured,  and  enticed  him  to  depart 
from  and  out  of  it :  and  he  accordingly  did  so ;  and  never  returned 
again  into  it. 

It  further  states  that  the  plaintiff  Bird,  in  Trinity  vacation  1761, 
and  before  the  commencement  of  the  present  action  against  Ran- 
dall, brought  an  action  of  debt  against  Burford  for  the  penalty  of 
one  hundred  pounds  for  his  departing  out  of  the  said  service;  and 
obtained  a  verdict  and  judgment  against  him  in  the  said  action,  and 
recovered  the  said  money,  with  costs;  but  the  said  moneys  (the 
debt  and  costs)  so  recovered  were  not  actually  paid  to  him  by 
the  said  Burford,  till  the  29th  of  March,  1762 ;  which  was  after 
the  commencement  of  the  present  action,  but  before  it  came  on  to 
be  tried. 

The  present  action  (which  is  an  action  of  trespass  upon  the  case) 
is  brouglit  by  the  same  plaintiff  Bird  against  the  present  defendant 
Randall,  for  the  enticing  and  seducing  the  said  Burford  out  of  the 
plaintiff''s  service. 

The  question  was,  "  Whether  the  present  action  be  maintainable 
or  not,  under  the  circumstances  of  this  case." 

The  court  took  time  to  consider,  till  this  day.     And  now 

Lord  Mansfield  delivered  the  resolution  of  the  court. 

This  case  turned,  he  said,  upon  two  points :  1st.  Whether  the 
plaintiff  could  have  maintained  this  action  against  the  defendant 
for  seducing  his  servant,  if  the  one  hundred  pounds  penalty  before 
recovered  by  him  against  the  servant  himself  had  been  actually 
received  by  him  before  the  commencement  of  the  present  action 


166  CASES   ON   COMMOX-LAW    PLEADING. 

against  the  seducer ;  ^  2dly.  If  it  could  not,  then  whether  his  hav- 
ing received  it  subsequent  to  the  commencement  of  the  present 
action  be  such  a  circumstance  as  will  vary  the  case,  so  as  to  en- 
title him  to  maintain  his  action,  which  he  could  not  have  main- 
tained, if  the  actual  receipt  had  been  prior  to  the  commencement 
of  it. 

2d  Point.  But  taking  it,  as  this  case  was,  "  That  he  had  not 
actually  received  it  of  the  servant  till  after  the  commencement  of 
the  present  action ; "  let  us  see  whether  this  circumstance  will  vary 
the  case. 

Several  arguments  were  drawn  by  the  tjounsel  for  the  defendant, 
from  cases  of  joint  trespassers  and  joint  contracts ;  which  were 
urged  as  being  applicable  to  the  present  question.  But  they  were 
sufficiently  answered  by  Mr.  Solicitor-General. 

There,  the  recovery  is  against  them  all,  for  the  same  thing ;  and 
there  is  no  analogy  at  all  between  those  cases  and  this.  In  those 
cases  there  is  a  recovery  of  the  selfsame  thing,  for  a  joint  injury : 
the  defendants  are  all  of  them  liable  to  the  plaintiff,  and  he  may 
proceed  against  any,  or  all  of  them,  if  he  pleases;  as  it  is  but  one 
trespass,  one  contract,  and  all  are  liable.  Yet  he  shall  have  but  one 
satisfaction  from  them  all. 

Another  essential  difference  between  those  cases  upon  torts  and 
actions  upon  the  case  is,  that  those  are  actions  stricti  juris ;  and 
therefore  such  a  former  recovery,  release,  or  satisfaction  cannot  be 
given  in  evidence,  but  must  be  pleaded;  but  an  action  upon  the 
case  is  founded  upon  the  mere  justice  and  conscience  of  the  plain- 
tiff's case,  and  is  in  the  nature  of  a  bill  in  equity,  and,  in  effect,  is 
so ;  and  therefore  such  a  former  recovery,  release  or  satisfaction 
need  not  be  pleaded,  but  may  be  given  in  evidence.  For  whatever 
will,  in  equity  and  conscience,  according  to  the  circumstances  of  the 
case,  bar  the  plaintiff's  recovery,  may,  in  this  action,  be  given  in  evi- 
dence by  the  defendant;  because  the  plaintiff  must  recover  upon  the 
justice  and  conscience  of  his  case,  and  upon  that  only. 

Whether  he  could  have  recovered  in  an  action  commenced 
against  the  present  defendant,  after  having  recovered  the  penalty 
from  the  servant,  but  without  having  actually  received  the  money 
so  recovered  from  the  servant,  I  will  not  now  determine :  I  should 
have  doubted  of  it,  extremely. 

But  here,  the  penalty  recovered  by  him  from  the  servant  was 
actually  received  by  him  before  the  present  action  came  on  to  be 
tried ;  without  any  sort  of  difficulty.     He  might  have  received  it, 

^  Matter  relating  to  the  first  point  is  here  omitted.  Matter  relating  to  the  second 
pojiit  is  much  abridged. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       1G7 

when  he  woukl :  but  he  chooses  to  lie  by,  till  he  has  brought  his 
action  against  a  third  person,  who  would  not  have  been  liable  to 
anything,  if  the  plaintiff  had  received  the  money  of  the  servant  in 
due  time ;  and  then  receives  it  of  the  first  defendant,  and  after- 
wards proceeds  in  this  action  to  recover  it  against  the  second  de- 
fendant ;  which  is  against  conscience.  Therefore  in  such  an  action 
as  this  is  (an  action  of  equity,  not  a  formed  action  stricti  juris),  it 
is  enough  if  it  appears  upon  the  evidence  that  the  plaintiff  ought 
not  in  conscience  to  recover  it. 

If  he  had  actually  recovered  it,  through  the  defendant's  not 
knowing  "  That  the  penalty  had  been  paid,"  an  action  would  lie 
against  him,  for  money  had  and  received :  like  the  case  out  of  the 
court  of  conscience,  not  long  since  determined  in  this  court. -^ 

As  the  plaintiff  has  already  received,  from  the  servant,  more  than 
ample  satisfaction  for  the  injury  done  him,  he  cannot  afterwards 
proceed  against  any  other  person  for  a  further  satisfaction. 

And  my  brother  Denison  suggests  to  me  that  the  court  would, 
upon  the  application  of  the  present  defendant,  by  way  of  motion, 
have  stayed  the  plaintiff's  proceeding  further  against  him,  upon  the 
defendant's  showing  them  "  That  tlie  plaintiff  had  actually  received 
the  money  recovered  by  him  in  his  former  action  against  the 
servant." 

Per  cur.     Let  the  postea  be  delivered  to  the  defendant. 


WINSMORE   V.  GREENBANK. 

In  the  Commox  Pleas.     1745. 
Reported  Willes,  581. 
New  facts  must  exist  in  every  special  action  on  the  case. 

"  Skinner,  Willes,  and  Hayward,  Serjts.,  moved  for  a  new  trial 
upon  several  affidavits,  setting  forth  (as  they  were  opened)  that  the 
verdict  was  against  evidence,  and  the  damages  excessive,  being 
£3000. 

"  The  action  was  an  action  on  the  case  for  enticing  away  and 
detaining  the  plaintiff's  wife,  which  were  laid  in  the  declaration 
with  several  other  particular  circumstances;  but  my  Brother 
Abney,  who  tried  the  cause,  being  in  court,  and  certifying  that  the 
verdict  was  not  against  evidence,  nor  the  damages  excessive,  and 
that  he  was  not  dissatisfied  with  it,  we  would  not  make  any  rule, 
nor  did  we  suff'er  the  affidavits  to  be  read. 

"Hayward  likewise  mentioned  another  objection  :  that  the  judge 

1  Moses  V.  Macfarlan,  3  Burr.  1005. 


168  CASES   ON    COMMON-LAW   PLEADING. 

would  not  allow  the  declarations  of  the  wife  to  be  given  in  evidence 
on  either  side,  but  the  two  senior  counsel  would  not  insist  on  that 
objection,  and 

"My  Brother  Burnett  and  I  were  of  opinion  that  my  Brother 
Abney  did  right  in  refusing  to  admit  such  evidence." 

"They  then  moved,  in  arrest  of  judgment." 

Willes,  Lord  Chief  Justice,  delivered  his  opinion  to  the  following 
effect : 

The  first  general  objection  is,  that  there  is  no  precedent  of  any 
such  action  as  this,  and  that  therefore  it  will  not  lie ;  and  the 
objection  is  founded  on  Lit.  s.  108,  and-  Co.  Lit.  81,  b,  and  several 
other  books.  But  this  general  rule  is  not  applicable  to  the  present 
case  ;  it  would  be  if  there  had  been  no  special  action  on  the  case 
before.  A  special  action  on  the  case  was  introduced  for  this  reason, 
that  the  law  will  never  suffer  an  injury  and  a  damage  without  a 
remedy ;  but  there  must  be  new  facts  in  every  special  action  on  the 
case. 

Mr.  J.  Abney,  and  Mr.  J.  Burnett,  gave  their  opinions  seriatim 
agreeing  with  the  Lord  Chief  Justice.  Eule  discharged.^ 

HOW  FAR   DID    THE   STATUTE    OF   WESTMINSTER   IL 
GIVE   "A   PLAIN   AND   ADEQUATE   REMEDY"? 

"  It  has  been  said  by  high  authority  that  the  principle  that  courts 
of  chancery  will  not  interfere  when  there  is  a  complete  and  ade- 
quate remedy  at  law  is  as  old  in  English  equity  jurisprudence  as 
the  earliest  period  of  its  recorded  history.  .  .  . 

"  By  the  terms  of  the  rule,  in  order  to  exclude  jurisdiction  in 
equity,  the  remedy  at  law  must  be  '  plain,  adequate,  and  complete.' 
To  follow  the  language  of  the  United  States  Supreme  Court,  '  It  is 
not  enough  that  there  is  a  remedy  at  law ;  it  must  be  plain  and 
adequate,  or,  in  other  words,  as  practical  and  as  efficient  to  the 
ends  of  justice  and  its  prompt  administration  as  [is]  the  remedy  in 
equity.'  "  ^     Merwin,  Equity,  29,  31. 

"  The  act  ^  permitted  the  framing  of  new  writs  in  cases  '  falling 
under  like  law  and  requiring  like  remedy '  with  the  existing  ones. 
Upon  this  permissive  language  the  courts  put  a  highly  restrictive 
meaning.  As  the  common-law  forms  of  action  gave  only  three  [?] 
different  kinds  of  remedies,  every  remedy  obtained  through  the 
means  of  the  new  writs  must  be  like  one  of  these  three  species. 

1  The  pleadings  and  part  of  tlie  opinion  are  omitted. 

2  Boyce's  Exrs.  v.  Grundy,  3  Peters,  210. 

3  The  Statute  of  Westminster  II. 


THE    PARENT   OF    CASE,   TROVEK,   AND    ASSUMPSIT.  169 

Thus  at  one  blow  all  power  was  denied  of  awarding  to  suitors  any 
special  equitable  relief  which  did  not  fall  within  one  or  the  other 
of  these  three  classes,  and  parties  who  required  such  special  forms 
of  remedy  were  still  compelled  to  seek  them  from  another  tribunal. 
The  same  was  true,  irrespective  of  the  particular  kinds  of  relief,  of 
all  cases  which  might  arise,  quite  dissimilar  in  their  facts  and  cir- 
cumstances from  those  to  which  the  existing  forms  of  action 
applied ;  not  falling  under '  like  law,'  they  were  held  to  be  without 
the  scope  of  the  statute,  and  the  complainants  could  obtain  no 
redress  from  the  common-law  courts. 

"  The  statute  only  provided  for  new  writs  on  behalf  of  plaintiffs. 
As  civilization  progressed,  and  the  relations  of  men  grew  more 
intricate  from  increase  of  commerce,  trade,  and  other  social  activities, 
new  defences  as  well  as  new  causes  of  action  constantly  arose.  Al- 
though these  were  not  within  the  letter  of  the  act,  they  were  fairly 
within  its  spirit.  But  the  law  courts  adhered  to  the  letter,  and 
ignored  the  spirit.  If,  therefore,  the  new  matter  of  defence  did  not 
fall  within  the  prescribed  formulas  of  the  legal  actions,  and  did  not 
conform  to  the  established  rules  defining  legal  defences,  the  party 
must  seek  relief  in  some  manner  from  the  jurisdiction  of  the 
chancellor. 

"  Although  the  statute  authorized  the  '  clerks  of  chancery '  to 
frame  the  new  writs,  and  seemed  by  implication  to  confer  upon 
them  the  absolute  powers  with  respect  to  the  matter  which,  it  was 
conceded,  were  held  by  parliament,  still  the  common-law  judges 
assumed  for  themselves  the  same  exclusive  jurisdiction  to  pass 
upon  the  propriety  and  validity  of  the  new  writs  which  they  had 
always  exercised  over  those  issued  by  the  clerks  prior  to  the  stat- 
ute. They  did  not  regard  the  action  of  the  chancery  officials  in 
sanctioning  a  writ  which  would  give  a  new  remedial  right  to  the 
plaintiff  as  at  all  binding,  and  in  fact  rejected  all  the  new  writs 
contrived  in  pursuance  of  the  statute,  which  did  not  closely  con- 
form to  some  one  of  the  existing  precedents.  The  chancery  clerks, 
being  ecclesiastics  and  acquainted  with  the  Roman  law,  seem  to 
have  fashioned  most  of  their  new  writs  in  imitation  of  the  Eoman 
formulai ;  but  all  these  innovations  upon  the  established  methods 
the  law  courts  refused  to  accept."     Pomeroy,  Equity,  ss.  26,  27,  28. 

CONFLICTING   VIEWS   OF   MODERN   WRITERS. 

"  It  is  often  alleged  that  by  a  liberal  construction  of  this  statute 
(Westminster  II.),  the  need  for  the  chancellor's  extraordinary  juris- 
diction would  have  been  avoided.    Austin  with  characteristic  vigor 


170  CASES    ON    COMMON-LAW    PLEADING. 

of  language  says  that  '  Equity  arose  from  the  sulkiness  and  obsti- 
nacy of  the  common-law  courts,  which  refused  to  suit  themselves 
to  the  changes  which  took  place  in  opinion  and  in  the  circum- 
stances of  society.'  Blackstone  writes  to  the  same  effect :  this  '  pro- 
vision (with  a  little  accuracy  in  the  clerks  of  the  chancery,  and  a 
little  liberality  in  the  judges,  by  extending  rather  than  narrowing 
the  remedial  effects  of  the  writ)  might  have  effectually  answered 
all  the  purposes  of  a  court  of  equity,  except  that  of  obtaining  dis- 
covery by  the  oath  of  the  defendant ; '  and  the  idea  is  not  confined 
to  modern  writers,  for  a  judge  of  the  reign  of  Edward  VI.  said  that, 
'  the  subpoena  (the  equity  process)  woujd  not  be  so  often  used  as 
it  is,  if  we  paid  heed  to  actions  upon  the  case.'  .  .  .  The  sugges- 
tion is,  however,  an  unfounded  one.  ...  It  is  not  true  that  with- 
out wholly  revolutionizing  their  procedure,  as  well  as  extending 
their  jurisdiction,  the  courts  could  have  afforded  the  kinds  of  relief 
that  equity  ultimately  gave."     Kerr,  Equity  Jurisprudence,  11,  12. 


(c)   The  Border  Land  between  Case  and  Trespass. 
SLATER   V.  BAKER   AND    STAPLETON. 

In  the  Common  Pleas.     1767. 
Reported  2  Wilson,  359. 
Case  lies  for  a  negligent  but  direct  application  of  force  to  plaintiff's  person. 

Special  action  upon  the  case,  wherein  the  plaintiff  declares  that 
the  defendant  Baker  being  a  surgeon,  and  Stapleton  an  apothecary, 
he  employed  them  to  cure  his  leg,  which  had  been  broken  and  set, 
and  the  callous  of  the  fracture  formed ;  that  in  consideration  of 
being  paid  for  their  skill  and  labor,  etc.,  they  undertook  and  prom- 
ised, etc.,  but  the  defendants  not  regarding  their  promise  and  un- 
dertaking, and  the  duty  of  their  business  and  employment,  so 
iguorantly  and  unskilfully  treated  the  plaintiff  that  they  igno- 
rantly  and  unskilfully  broke  and  disunited  the  callous  of  the  plain- 
tiffs leg  after  it  was  set,  and  the  callous  formed,  whereby  he  is 
damaged.  The  defendants  pleaded  not  guilty,  whereupon  issue  was 
joined,  which  was  tried  before  the  Lord  Chief  Justice  Wilmot,  and 
a  verdict  found  for  the  plaintiff,  damages  £500.  The  substance  of 
the  evidence  for  the  plaintiff  at  the  trial  was,  first,  a  surgeon  was 
called,  who  swore  that  the  plaintiff  having  broken  both  the  bones  of 
one  of  his  legs,  this  witness  set  the  same,  that  the  plaintiff  was  un- 
der his  hands  nine  weeks,  that  in  a  month's-time  after  the  leg  was  set, 
he  found  the  leg  was  healing  and  in  a  good  way ;  the  callous  was 


THE    PARENT    OF   CASE,   TROVER,   AND   ASSUMPSIT.  171 

formed,  there  was  a  little  protuberance,  but  not  more  than  usual ; 
upon  cross-examination  he  said  he  was  instructed  in  surgery  by 
his  father,  that  the  callous  was  the  uniting  the  bones,  and  that  it 
was  very  dangerous  to  break  or  disunite  the  callous  after  it  was 
formed. 

John  Latham,  an  apothecary,  swore  he  attended  the  plaintiff  nine 
weeks,  who  was  then  well  enough  to  go  home,  that  the  bones  were 
well  united,  that  he  was  present  with  the  plaintiff  and  defendants, 
and  at  first  the  defendants  said  the  plaintiff  had  fallen  into  good 
hands ;  the  second  time  he  saw  them  all  together  the  defendants 
said  the  same,  but  when  he  saw  them  together  a  third  time  there 
was  some  alteration,  he  said  the  plaintiff  was  then  in  a  passion, 
and  was  unwilling  to  let  the  defendants  do  anything  to  his  leg ;  he 
said  he  had  known  such  a  thing  done  as  disuniting  the  callous,  but 
that  had  been  only  when  a  leg  was  set  very  crooked ;  but  not  where 
it  was  straight. 

A  woman  called  as  a  witness  swore  that  when  the  plaintiff  came 
home  he  could  walk  with  crutches,  that  the  defendant  Baker  put  on 
to  the  plaintiffs  leg  an  heavy  steel  thing  that  had  teeth,  and  would 
stretch  or  lengthen  the  leg,  that  the  defendants  broke  the  leg  again, 
and  three  or  four  months  afterwards  the  plaintiff  was  still  very  ill 
and  bad  of  it. 

The  daughter  of  the  plaintiff  swore  that  the  defendant  Stapleton 
was  first  sent  for  fo  take  off  the  bandage  from  the  plaintiffs  leg, 
when  he  came  he  declined  to  do  it  himself,  and  desired  the  other 
defendant  Baker  might  be  called  in  to  assist ;  when  Baker  came  he 
sent  for  the  machine  that  was  mentioned ;  plaintiff  offered  to  oive 
Baker  a  guinea,  but  Stapleton  advised  him  not  to  take  it  then,  but 
said  they  might  be  paid  all  together  when  the  business  w^as  done  ; 
that  the  third  time  the  defendants  came  to  the  plaintiff.  Baker  took 
up  the  plaintiff's  foot  in  both  his  hands  and  nodded  to  Stapleton, 
and  then  Stapleton  took  the  plaintiff's  leg  upon  his  knee,  and  the 
leg  gave  a  crack  when  the  plaintiff  cried  out  to  them  and  said,  "  You 
have  broke  what  nature  had  formed;"  Baker  then  said  to  the  plain- 
tiff, "  You  must  go  through  the  operation  of  extension,"  and  Staple- 
ton  said,  "  We  have  consulted  and  done  for  the  best." 

Another  surgeon  was  called  and  swore  that  in  cases  of  crooked 
legs  after  they  have  been  set,  the  way  of  making  them  straiglit  is 
by  compression  and  not  by  extension,  and  said  he  had  not  the  least 
idea  of  the  instrument  spoken  of  for  extension ;  he  gave  Baker  a 
good  character,  as  having  been  the  first  surgeon  of  St.  Bartholomew's 
Hospital  for  twenty  years,  and  said  he  had  never  known  a  case 
where  the  callous  had  deossified. 


172  CASES    ON    COMMON-LAW   TLEADIXG. 

Another  surgeon  was  called  who  swore  that  when  the  callous  is 
formed  to  any  degree  it  is  dithcult  to  break  it,  and  the  callous  in 
this  case  must  have  been  formed,  or  it  would  not  have  given  a 
crack,  and  said  extension  was  improper,  and  if  the  patient  himself 
had  asked  him  to  do  it,  he  would  have  declined  it,  and  if  the  callous 
had  not  been  hard  he  would  not  have  done  it  without  the  consent 
of  the  plaintiff,  that  compression  was  the  proper  way,  and  the  in- 
strument improper ;  he  said  the  defendant  Baker  was  eminent  in 
his  profession.  Another  surgeon  was  called  who  swore  that  if  the 
plaintiff  was  capable  of  bearing  his  foot  upon  the  ground,  he  would 
not  have  disunited  the  callous  if  he  liad  been  desired  by  him,  but 
in  no  case  whatever  without  consent  of  the  patient ;  if  the  callous 
was  loose,  it  was  proper  to  make  the  extension  to  bring  the  leg 
into  a  right  line.  A  servant  of  the  plaintiff  swore  the  plaintiff 
had  put  his  foot  upon  the  ground  three  or  four  weeks  before  this 
was  done. 

The  counsel  for  the  defendants  at  the  trial  for  Baker  relied  upon 
the  good  character  which  was  given  him,  and  objected  there  was  no 
evidence  to  affect  the  other  defendant  Stapleton  the  apothecary ; 
but  the  Lord  Chief  Justice  thought  there  was  such  evidence  against 
both  the  defendants  as  ought  to  be  left  to  the  jury,  as  the  nodding, 
the  advising  Baker  not  to  take  the  guinea  offered  to  him  by  the 
plaintiff,  besides  the  apothecary  first  proposed  sending  for  Baker; 
the  plaintiff  was  in  no  pain  before  they  extended  his  leg,  and  he 
only  sent  to  Stapleton  to  have  the  bandage  taken  off;  the  Lord 
Chief  Justice  asked  the  jury  whether  they  intended  to  find  the 
damages  against  both  the  defendants,  and  they  found  £500  against 
them  jointly,  and  he  said  he  was  well  satisfied  with  the  verdict. 

It  was  now  moved  that  the  verdict  ought  to  be  set  aside  because 
the  action  is  upon  a  joint  contract,  and  there  is  no  evidence  of  a 
joint  undertaking  by  both  the  defendants  ;  the  plaintiff  sends  for 
Stapleton  to  take  off  the  bandage,  who  declines  doing  it,  and  says,  "  I 
do  not  understand  this  matter,  you  must  send  for  a  surgeon  ; "  accord- 
ingly Mr.  Baker  is  sent  for,  who  enters  upon  the  business  as  a  sur- 
geon unconnected  with  Stapleton,  who,  it  does  not  appear,  ever 
undertook  for  any  skill  about  the  leg,  so  the  jury  have  found  him 
guilty  without  any  evidence.  That  Baker  has  been  above  twenty 
years  the  first  surgeon  in  St.  Bartholomew's  Hospital,  reads  lectures 
in  surgery  and  anatomy,  and  is  celebrated  for  his  knowledge  in  his 
profession  as  well  as  his  humanity ;  and  to  charge  such  a  man  with 
ignorance  and  unskilfulness  upon  the  records  of  tliis  court  is  most 
dreadful ;  all  the  witnesses  agreed  Mr.  Baker  doth  not  want  knowl- 
edge, therefore  this  verdict  ought  not  to  stand.     2dly,  It  was  ob- 


THE    PAEEXT    OF    CASE,   TROVER,    AND    ASSUMPSIT.  173 

jected  that  the  evidence  given  does  not  apply  to  this  action,  which 
is  upon  a  joint  contract ;  the  evidence  is  that  the  callous  of  the  leg 
was  broke  without  the  plaintiffs  consent ;  but  there  is  no  evidence 
of  ignorance  or  want  of  skill,  and  therefore  the  action  ought  to  have 
been  trespass  vi  &  armis  for  breaking  the  plaintiff's  leg  without  his 
consent;  all  the  surgeons  said  they  never  do  anything  of  this  kind 
without  consent,  and  if  the  plaintiff  should  not  be  content  with  the 
present  damages,  but  bring  another  action  of  trespass  vl  <&  armis, 
could  this  verdict  be  pleaded  in  bar  ?  Tlie  court  without  hearing 
the  counsel  for  the  plaintiff  gave  judgment  for  him. 

2dly,  It  is  objected  that  this  was  not  the  proper  action,  and  that 
it  ought  to  have  been  trespass  vi  &  armis  ;  in  answer  to  this,  it 
appears  from  the  evidence  of  the  surgeons  that  it  was  improper  to 
disunite  the  callous  without  consent :  this  is  the  usage  and  law  of 
surgeons  ;  then  it  was  ignorance  and  unskilfulness  in  that  very  par- 
ticular to  do  contrary  to  the  rule  of  the  profession,  what  no  surgeon 
ought  to  have  done  ;  and  indeed  it  is  reasonable  that  a  patient  should 
be  told  what  is  about  to  be  done  to  him,  that  he  may  take  courage 
and  put  himself  in  such  a  situation  as  to  enable  him  to  undergo  the 
operation ;  it  was  objected,  this  verdict  and .  recovery  cannot  be 
pleaded  in  bar  to  an  action  of  trespass  vi  &  armis  to  be  brought 
for  the  same  damage  ;  but  we  are  clear  of  opinion  it  may  be  pleaded 
in  bar.  That  the  plaintiff  ought  to  receive  a  satisfaction  for  the  in- 
jury seems  to  be  admitted ;  but  then  it  is  said  the  defendants  ought 
to  have  been  charged  as  trespassers  vi  &  armis  ;  the  court  will  not 
look  with  eagle's  eyes  to  see  whether  the  evidence  applies  exactly 
or  not  to  the  case,  when  they  can  see  the  plaintiff  has  obtained 
a  verdict  for  such  damages  as  he  deserves,  they  will  establish  such 
verdict  if  it  be  possible.  For  anything  that  appears  to  the  court 
this  was  the  first  experiment  made  with  this  new  instrument,  and 
if  it  was,  it  was  a  rash  action,  and  he  who  acts  rashly  acts  igno- 
rantly  ;  and  although  the  defendants  in  general  may  be  as  skilful  in 
their  respective  professions  as  any  two  gentlemen  in  England,  yet 
the  court  cannot  help  saying  that  in  this  particular  case  they  have 
[acted]  ignorantly  and  unskilfully,  contrary  to  the  known  rule  and 
usage  of  surgeons. 

Judgment  for  the  plaintiff  ^gr  totam  curiam} 

1  Matter  not  relating  to  the  distinction  between  case  and  trespass  is  omitted. 


174  CASES   ON   COMMON-LAW    PLEADING. 

REYNOLDS   v.    CLARKE. 

In  the  King's  Bench.     1725. 
•  Reported  1  Strange,  634. 

The  distinction  between  trespass  and  case. 

Trespass  for  entering  the  plaintiff's  yard  and  fixing  a  spout  there, 
per  quod  the  water  came  into  the  yard  and  rotted  the  walls  of  the 
plaintiffs  house.  The  defendant  justifies  that  before  the  trespass 
John  Fountain  was  seised  in  fee  of  the  plaintiff's  house  and  yard, 
and  two  other  houses  adjoining,  and  demised  the  plaintiffs  house 
and  yard  to  one  Tyler,  except  the  free  use  of  the  yard  and  privy 
for  the  tenants  of  the  other  two  houses  jointly  with  the  tenant  of 
the  plaintiff's  house  ;  then  he  shows  how  the  house  of  the  defend- 
ant, which  was  one  of  the  two  houses,  came  to  him,  and  that  he 
entered  the  yard  and  fixed  the  spout  for  his  necessary  use,  to  carry 
off  the  rain,  prout  ei  bene  licuit.     The  plaintiff  demurs.     And 

Eeeve  -pro  defendenie  insisted  that  this  exception  amounted  to  a 
license  of  the  party,  and  that  a  distinction  has  always  been  taken 
between  a  license  in  law,  as  to  go  into  a  tavern,  and  the  license  of 
the  party,  and  that  this  being  of  the  latter  sort  an  action  of  trespass 
will  not  lie  ;  but  if  the  spout  be  a  prejudice,  the  plaintiff  must  right 
himself  by  an  action  upon  the  case.  11  Co.  The  Six  Carpenters' 
Case.  This  is  an  action  of  trespass  brought  for  a  nuisance  upon  our 
own  possession. 

Et  per  Chief  Justice.     Though  he  had  a  right  to  enter  into  the 
yard,  yet  it  is  considerable,  whether  if  he  abuses  that  right  to  the 
detriment  of  another,  he  is  not  in  the  same  case  with  every  other 
trespasser.     Et  j^er  Fortescue,  Justice.     Trespass  is  a  possessory 
action.^nd  how  does  this  invade  the  plaintiff's  possession?    .Thfi^ 
difference  between  trespass  and  case  is  that  in  trespass  the  plaintiff, 
complains  of  an  immediate  wrong,  and  in  case  of  a  wrong  that  is_ 
the  consequence  of  another  act.     Et  per  Kaymond,  Justice.     That 
distinction  is  perfectly  right.    I  remember  a  case  in  B.  E.  Courtney 
V.  Collett,  which  was  for  the  defendant's  diverting  his  own  water- 
course in  his  own  land,  per  quod  the  plaintiffs  land  was  overflowed ; 
after  a  verdict  pro  qiLer',  it  was  often  debated  whether  this  was  an 
action  of  trespass  or  upon  the  case,  and  at  last  judgment  was  for 
the  plaintiff,  who  had  brought  trespass  only. 

The  court  said  it  was  a  nice  case,  and  therefore  they  gave  not 
their  opinion,  but  ordered  an  ulterius  concilium. 

After  a  second  argument  to  the  effect  of  the  former,  the  court 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       175 

delivered  their  opinions  this  term.  Chief  Justice.  We  must  keep 
up  the  boundaries  of  actions,  otherwise  we  shall  introduce  the  ut- 
most confusion  ;  if  the  act  in  the  first  instance  be  unlawful,  trespass 
will  lie  ;  but  if  the  act  is  prima  facie  lawful  (as  it  was  in  this  case) 
and  the  prejudice  to  another  is  not  immediate  but  consequential, 
it  must  be  an  action  upon  the  case ;  and  this  is  the  distinction. 
The  case  I  mentioned  tlie  last  time  of  Courtney  v.  Collett  was  a 
plain  trespass,  and  the  account  I  then  gave  of  it  from  my  memory 
was  mistaken  :  it  was  Hil.  9  W.  3  in  B.  R.  trespass  for  taking  fishes, 
necnon  pro  eo  quod  he  broke  down  the  bank  of  the  river,  per  quod 
the  water  issued  and  other  fishes  went  away :  after  verdict  for 
the  plaintiff,  it  was  moved  in  arrest  of  judgment  that  the  latter 
part  was  case,  and  not  joinable  with  trespass ;  but  the  court  held 
that  was  a  trespass,  and  what  came  under  the  per  quod  was  only 
matter  of  aggravation.  There  was  another  case  in  B.  R.  Hil.  8  Ann. 
Leveridge  v.  Hoskins.  That  was  case  for  digging  trenches,  whereby 
the  water  was  drawn  away  from  the  plaintiff's  river ;  it  was  moved 
in  arrest  of  judgment  that  this  was  trespass ;  but  the  court  said 
that  it  not  being  laid  to  be  a  digging  upon  the  plaintiff's  ground, 
the  action  upon  the  case  was  most  proper :  and  I  take  that  and 
this  to  be  the  same  case,  the  defendant  having  a  right  to  enter  the 
yard,  and  do  the  first  act,  which  is  here  complained  of,  I  think  this 
should  have  been  an  action  upon  the  case,  and  that  trespass  will 
not  lie. 

Powys  accord.  Et  per  Fortescue,  Justice.  Trespass  will  not  lie 
for  procuring  another  to  beat  me  ;  if  a  man  throws  a  log  into  the 
highway,  and  in  that  act  it  hits  me,  I  may  maintain  trespass,  be- 
cause it  is  an  immediate  wrong ;  but  if  as  it  lies  there,  I  tumble 
over  it,  and  receive  an  injury,  I  must  bring  an  action  upon  the  case  ; 
because  it  is  only  prejudicial  in  consequence,  for  which  originally  I 
could  have  no  action  at  all.  Et  per  Reynolds,  Justice.  Tlie  dis- 
tinction is  certainly  right ;  this  is  only  injurious  in  its  consequence, 
for  it  is  not  pretended  that  the  bare  fixing  a  spout  was  a  cause  of 
action,  without  the  falling  of  any  water ;  the  right  of  action  did 
not  accrue  till  the  water  actually  descended,  and  therefore  this 
should  have  been  an  action  upon  the  case. 

Per  curiam^  Judgment  for  the  defendant. 


176  CASES    ON    COMMON-LAW    PLEADING. 

GATES   V.  BAYLEY. 
In  the  Common  Pleas.     1766. 
Reported  2  Wilson,  313. 
The  distinction  between  trespass  and  case. 

Trespass  for  taking  and  impounding  the  plaintiff's  cattle  and 
keeping  them  in  the  pound  so  closely  confined  together  that  by 
reason  thereof  one  of  the  beasts  died ;  the  defendant  first  pleads 
the  general  issue  to  the  whole  declaration,  and  thereupon  issue  is 
joined  ;  and,  2dly,  a  justification  under  the  corporation  of  London 
that  he  took  the  cattle  damage  feasant  and  put  them  into  the 
pound,  as  it  was  lawful  for  him  to  do  ;  the  plaintiff  replies  de  injuria 
sua  'propria,  and  thereupon  issue  is  joined;  the  jury  gave  a  verdict 
for  the  plaintiff  upon  the  general  issue,  and  the  value  of  his  beasts 
that  died  in  damages  ;  upon  the  other  issue  on  the  justification  they 
found  for  the  defendant. 

And  now  it  was  moved  that  judgment  might  be  entered  for  the 
defendant,  because  the  jury  have  found  for  him  upon  the  justifica- 
tion, which  covers  the  whole  trespass  in  the  declaration  ;  and  the 
beasts  dying  after  being  put  into  the  pound  is  only  gravamen,  and 
does  not  make  the  defendant  a  trespasser  al  initio  ;  if  the  plaintiff 
can  have  any  action  for  the  loss  of  his  beasts  it  must  be  case,  and 
not  trespass ;  the  difference  between  trespass  and  case  is,  that  in 
trespass  the  plaintiff  complains  of  an  immediate  wrong,  and  in  case, 
of  a  wrong  that  is  the  consequence  of  another  act,  per  Fortescue, 
Justice,  and  by  Eaymond,  Justice,  That  distinction   is  perfectly 
right.    And  by  the  Chief  Justice,  We  must  keep  up  the  boundaries 
of  actions,  otherwise  we  shall  introduce  the  utmost  confusion  ;  if  the 
act,  in  the  first  instance,  be  unlawful,  trespass  will  lie ;  but  if  the 
act  is  prima  facie  lawful  (as  it  was  in  the  case  at  bar)  and  the  preju- 
dice to  another  is  not  immediate  but  consequential,  it  must  be  an 
action  upon  the  case ;  and  this  is  the  distinction.     1  Stran.  635. 
Eeynolds  v.  Clarke,  2  Ld.  Eaym.  1402 ;  s.  c.  8  Mod.  272 ;  s.  c.  that 
the  per  quod  the  cattle  died,  after  impounding  in  trespass,  is  only 
aggravation.     1  Vent.  54.     The  only  act  done  by  the  defendant  in 
this  case  was  the  taking  and  impounding  the  cattle  in  the  common 
pound,  for  doing  damage ;  this  the  law  gave  him  authority  to  do, 
and  he  did  no  other  act  whatever,  and  he  cannot  be  charged  in 
trespass  for  tlie  death  of  the  beast,  which  was  a  consequence  and 
not  an  immediate  malfeasance  by  the  defendant ;  no  man  can  be  a 
trespasser  for  a  nonfeasance ;  the  law  gave  the  six  carpenters  au- 


THE  PARENT  OF  CASE,  TKOVER,  AND  ASSUMPSIT.       177 

thority  to  go  into  the  tavern,  but  the  not  paying  for  the  wine  did 
not  make  them  trespassers  ah  initio  ;  the  taveruer  might  have  his 
action  of  debt  for  the  wine.  8  Eep.  146,  147.  Trespass  will  not 
lie  for  taking  an  excessive  distress,  because  the  entry  at  first  is  law- 
ful ;  the  remedy  in  that  case  is  by  the  stat.  of  Marlbridge,  2  Stran. 
851 ;  3  Lev.  48,  so  that  it  is  not  every  abuse  of  a  distress  that 
makes  a  man  a  trespasser  ah  initio. 

For  the  plaintiff'  it  was  said  that  the  justification  gives  no  answer 
to  the  putting  the  cattle  so  closely  together,  whereby  one  died,  and 
therefore  the  plaintiff"  ought  to  have  judgment  upon  the  issue  found 
for  him  on  the  Not  guilty  ;  that  it  was  a  misfeasance  in  the  first  in- 
stance, and  made  the  defendant  a  trespasser  ah  initio.  Bed  non 
allocatur. 

Curia  :  The  justification  is  an  answer  to  the  whole  trespass  in 
the  declaration,  which  is  only  the  taking  and  impounding ;  all  the 
rest,  as  the  dying  of  the  beast,  is  only  aggravation,  if  the  plaintiff" 
would  have  insisted  that  the  defendant  had  abused  the  distress,  he 
ought  to  have  replied  that  after  the  said  distress  the  defendant 
abused  it  so  and  so,  and  have  concluded  with  an  averment,  and  this 
would  not  have  been  a  departure,  because  he  who  abuses  a  distress 
is  a  trespasser  ah  initio,  according  to  the  case  of  Gargrave  v.  Smith, 
1  Salk.  221,  and  Bagshaw  v.  Gaward,  Yelv.  96,  97. 

Judgment  for  the  defendant  ;per  totam  curiam. 


PITTS   V.   GAINCE  AND   FORESIGHT. 

Ix  THE  King's  Bench.     1700. 

Reported  1  Salkeld,  10. 

Action  sitr  le  case,  for  that  he  was  master  of  a  ship,  and  that  it 
was  laden  with  corn  in  such  a  harbor,  ready  to  sail  for  Dantzick, 
and  that  the  defendant  entered  and  seized  the  ship  and  detained 
her,  yer  quod  impeditus  &  ohstructus  fait  in  viagio.  Defendant 
justified  for  toll  and  port  duties  ;  but  his  plea  being  naught,  took 
this  exception  to  the  action,  viz. :  That  it .  should  have  been  tres- 
pass. Vide  4  Edw.  III.  24  ;  Palm.  47;  13  Hen.  VII.  26.  Holt,  C.  J. 
In  the  cases  cited,  the  plaintiff"  had  a  property  in  the  thing  taken ; 
but  here  the  plaintiff  has  not  a  property;  the  ship  was  not  the 
master's  but  the  owner's ;  the  master  only  declares  as  a  particular 
officer,  and  can  only  recover  for  his  particular  loss.  Yet  he  might 
have  brought  trespass  as  a  bailiff  of  goods  may;  and  then  as  a 
bailiff  he  could  only  have  declared  upon  his  possession,  s.  c.  that  he 

12 


178  CASES   ON   COMMOX-LAW   PLEADING. 

was  possessed ;  which  is  sufficient  to  maintaiu  trespass.     Judgment 
pro  quer} 

SAMUEL  DALTON  v.   JACOB  FAVOUR,  JR. 

Superior  Court  of  Judicature,  New  Hampshire.     1826. 

Reported  3  New  Hampshire,  465. 

Trespass  and  case  may,  under  certain  circumstances,  be  concurrent 
remedies. 

Trespass  on  the  case,  for  that  the  said  Favour,  on  the  27th  Sep- 
tember, 1825,  at  D.,  having  in  his  hands  a  firelock,  highly  charged 
with  powder,  and  a  great  quantitj'  of  wadding,  so  exceedingly  care- 
lessly managed  his  said  firelock,  that  he  discharged  its  contents  into 
the  foot  of  the  plaintitf ;  whereby  he  was  put  to  great  pain,  etc. 

The  cause  was  tried  here,  upon  the  general  issue,  at  November 
Term,  1825 ;  when  it  appeared  in  evidence,  that  the  plaintitf  was 
standing  in  an  entry  of  a  house  in  sight  of  the  defendant,  who  was 
about  six  feet  distant  from  him,  when  the  defendant  discharged 
the  firelock  and  wounded  the  plaintiff  in  his  foot ;  but  it  did  not 
appear  that  the  firelock  was  discharged  with  intent  to  injure  the 
plaintiff,  but  the  accident  was  the  consequence  of  great  carelessness. 

Webster,  for  the  defendant,  objected,  that  case  could  not  be  sup- 
ported on  the  facts  proved  in  the  case ;  but  the  court  overruled  the 
objection;  and  the  jury  having  returned  a  verdict  for  the  plaintiff, 
he  moved  the  court  to  grant  a  new  trial^  on  the  same  ground. 

Smiley,  for  the  plaintiff. 

Eichardson,  C.  J.,  delivered  the  opinion  of  the  court. 

The  principles,  upon  which  the  decision  of  this  case  must  de- 
pend, are  well  settled  in  the  books. 

In  all  cases,  where  the  injury  is  done  with  force  and  immediately 
by  the  act  of  the  defendant,  trespass  may  be  maintained.  1  Chitty's 
PI.  122  ;  3  East,  593,  Leame  v.  Bray;  19  Johns.  381 ;  18  Johns.  257, 
Percival  v.  Hickey. 

And  in  every  case,  where  the  injury  is  the  immediate  effect  of  the 
defendant's  act,  and  is  stated  in  the  declaration,  or  appears  upon 
the  trial,  to  have  been  wilfully  done,  the  remedy  must  be  trespass. 
1  Chitty's  PI.  127 ;  8  D.  &  E.  188,  Ogle  v.  Barnes ;  6  D.  &  E.  128, 
and  Savinac  v.  Eoome,  6  D.  &  E.  125  ;  5  D.  &  E.  648,  Day  v.  Edwards. 

But  where  the  damage  or  injury  ensues,  not  directly  from  the  act 
of  the  defendant,  the  remedy  must  be  case.     1  Chitty's  PL  126. 

1  Per  Mr.  Wedderburne  in  Harker  v.  Birbeck,  3  Burr.  1561.  "Both  actions  may 
lie  where  there  is  both  an  immediate  and  also  a  consequential  injury  ;  and  the  plain- 
tiffs therein,  being  entitled  to  both  actions,  must  have  their  election  to  proceed  in 
either." 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       179 

In  all  cases,  where  the  injury  is  attributable  to  negligence,  al- 
though it  were  the  immediate  effect  of  the  defendant's  act,  the  party 
injured  has  an  election,  either  to  treat  the  negligence  of  the  defend- 
ant as  the  cause  of  action,  and  declare  in  case,  or  to  consider  the 
act  itself  as  the  cause  of  the  injury,  and  to  declare  in  trespass.  1 
Chitty's  PI.  127;  5  Bos.  &  Puller,  117,  Piogers  v.  Imbleton ;  3  Bur- 
rows, 1560 ;  5  B.  &  P.  447,  note ;  3  East,  600-601 ;  8  D.  &  E.  188, 
Ogle  V.  Barnes ;  14  Johns.  432,  Bliss  v.  Campbell,  where  it  was  de- 
cided that  case  might  be  maintained  for  wounding  the  plaintiff's 
leg,  by  negligently  firing  a  pistol.  1  Bos.  &  Puller,  472,  Turner  v. 
Hawkins. 

In  the  case  now  before  us,  it  did  not  appear,  that  the  injury  was 
wilfully  done,  but  it  was  the  consequence  of  great  carelessness. 
This  is  an  instance,  then,  where  either  trespass  or  case  may  be  main- 
tained; and  there  must  be  judgment  on  the  verdict. 


y^ 


y^      I  hfk*^  Section  II. 

'  TROVER 

"  Trover,  in  substance,  is  a  remedy  to  recover  the  value 
of  personal  chattels  wrongfully  converted  by  another  to  his 
own  use."     It  is  an  oifshoot  from  trespass  on  the  case. 

Trover  was  so-called  from  the  French  "trouver,"  mean- 
ing "  to  find,"  and  was  founded  on  the  fiction  that  the 
plaintiff  had  lost  the  chattels,  and  that  the  defendant  had 
found  them  and  then  unlawfully  converted  them.  The  fic- 
tion of  losing  and  finding  was  alleged  in  the  declaration, 
but  no  issue  could  be  joined  upon  it. 

As  finally  developed,  trover  lies:  1.  Without  demand, 
for  defendant's  wrongful  taking  or  destruction  of  personal 
chattels  in  plaintiff's  actual  or  constructive  possession. 
Bruen  v.  Roe,  Sidf .  264 ;  s.  c.  3  Salk.  365.  2.  After  de- 
mand and  refusal,  for  defendant's  wrongful  detention  after 
his  original  rightful  possession.  Cooper  v.  Monks,  Willes, 
52;  Mulgrave  v.  Ogden,  Cro.  Eliz.  219;  Drew  v.  Spalding, 
45  N.  H.  472  ;  Baldwin  v.  Cole,  6  Mod.  212. 

Judgment,  if  for  plaintiff,  damages  assessed  by  jury,  and 
costs. 


180  CASES    ON    COMMON-LAW   PLEADING. 

THE  HISTOEY   OF   TEOA'ER. 

First,  of  the  history  of  trover.  We  approach  the  modern 
action  of  trover  by  three  distinct  steps  :  1.  The  ancient 
action  for  a  chose  adirree.  2.  The  less  ancient  action  of 
detinue  sur  trover.  3.  The  developed  action  of  trover. 
Each  of  the  three  actions  has  its  typical  and  peculiar 
feature  ;  but  it  is  significant  to  note  at  the  outset  that 
the  essence  of  each  action  is  a  finding,  and  the  individuality 
of  the  action  is  determined  by  some  modification  of  that 
fiudinsr. 

To  be  specific :  in  an  action  for  a  cJiose  adirree,  the 
plaintiff  finds  his  chattels  in  the  defendant's  possession  ; 
in  an  action  of  detinue  sur  trover,  the  plaintiff  counts  of 
a  finding  by  the  defendant  of  the  plaintiff's  lost  chattels ; 
and  in  the  developed  action  of  trover,  the  element  of  find- 
ing sinks  into  insignificance,  except  as  form,^  and  the 
conversion  stands  out  as  the  gist  of  the  action,  but  there 
is  still  the  fiction  of  losing  and  finding. 

We  shall  trace  the  chose  adirree  and  the  detinue  sur  trover, 
so  far  as  we  can,  into  the  modern  action  of  trover. 

1.     Chose  Adirree. 

COUNT   FOR   A   CHOSE   ADIRRfeE.2 

Y.  B.  21-22  Edward  L  466. 

"  iSTote  ^  that  where  a  thing  belonging  to  a  man  is  lost,  he  may 
count  that  he  (the  finder)  tortiously  detains  it,  etc.,  and  tortiously 
for  this  that  whereas  he  lost  the  said  thing  on  such  a  day,  etc.,  he 
(the  loser)  ou  such  a  day,  etc.,  and  found  it  in  the  house  of  such  an 
one  and  told  him,  etc.,  and  prayed  him  to  restore  the  thing,  but  that 
he  would  not  restore  it,  etc.,  to  his  damage,  etc. ;  and  if  he  will,  etc. 
In  this  case  the  demandant  must  prove  by  his  law  (his  own  hand  the 
twelfth)  that  he  lost  the  thing." 

1  In  detinue  upon  trover,  it  was  repeatedly  held  that  the  trover  was  traversable. 
Y.  B.  27  Heu,  VIII.  33.  "In  detinue  the  plaintiff  counted  nyjou  trover,"  and  the  de- 
fendant did  not  traverse  the  trover.  Per  Brian,  J.  "  This  is  no  plea  without  travers- 
ing the  trover;  for  otherwise  he  does  not  encounter  the  plaintiff."  Y.  B.  21  Edw.  IV. 
5.) ;  Viner's  Abr.  Detinue,  37. 

^  Ames,  History  of  Trover,  11  Harv.  L.  Rev.  374,  at  382. 

3  Note  also  that  "  it  is  the  plaintiff  who  finds  the  chattel  in  the  defendant's  posses- 
sion."    Ames,  History  of  Trover,  1 1  Harv.  L.  Rev.  374,  at  382. 


THE  PAKENT  OF  CASE,  TKOVER,  AND  ASSUMPSIT.       181 


Chose  Adirree  Defined.^ 

"We  have  now  to  consider  the  extension  of  detinue  to  cases 
where  there  was  no  bailment.  Legal  proceedings  for  the  recovery 
of  chattels  lost  were  taken,  in  the  earliest  reported  cases,  in  the 
popular  courts.  The  common  case  was  doubtless  that  of  an  animal 
taken  as  an  estray  by  the  lord  of  a  franchise.  If  the  lord  made 
due  proclamation  of  the  estray,  and  no  one  claimed  it  for  a  year 
and  a  day,  the  lord  was  entitled  to  it.  liut  within  the  year  and 
day,  the  loser  might  claim  it,  and  if  he  produced  a  sufficient  secta, 
or  body  of  witnesses  to  swear  to  his  ownership  or  loss  of  the  ani- 
mal, it  was  customary  for  the  lord  to  give  it  up,  upon  the  owner's 
paying  him  for  its  keep,  and  giving  pledges  to  restore  it  in  case 
of  any  claim  for  the  same  animal  being  made  within  the  year  and 
day.  ...  If  the  lord,  or  other  person  in  whose  hands  the  estray 
or  other  lost  chattel  was  found,  refused  to  give  it  up  to  the 
claimant,  the  latter  might  count  against  the  possessor  for  his  res 
adirata,  or  chose  adirree,  that  is,  his  chattel  gone  from  his  hand 
without  his  consent ;  or  he  might  bring  an  appeal  of  larceny. 
According  to  Bracton,  the  pursuer  of  a  thief  was  allowed  '  rem  suam 
petere  ut  adiratam  per  testimonium  prohorum  hominum  et  si  consequi 
rem  suam  quamvis  faratam.'  This  statement  of  Bracton,  taken 
by  itself,  would  warrant  the  belief  that  the  successful  plaintiff  in 
the  action  for  a  chose  adirree  had  judgment  for  the  recovery  of  the 
chattel.  This  may  have  been  the  fact ;  but  it  is  difficult  to  believe 
that  such  a  judgment  was  given  in  the  popular  court.  No  intima- 
tion of  such  a  judgment  is  to  be  found  in  any  of  the  earlier  cases. 
It  seems  probable  that  Bracton  meant  simply  that  the  plaintiff 
might  formally  demand  his  chattel  in  court  as  adiratum,  and,  by 
the  defendant's  compliance  with  the  demand,  recover  it.  For,  in 
the  sentence  immediately  following,  Bracton  adds  that  if  the  de- 
fendant will  not  comply  with  his  demand,  —  'si  .  .  .  in  hoc  ei  non 
oltemperavcrit  '  —  the  plaintiff  may  proceed  further  and  charge  him 
as  a  thief  by  an  appeal  of  larceny.  This  change  from  the  one 
action  to  the  other  is  illustrated  by  a  case  of  the  vear  1233, 
2  Bract.  Note  Book,  No.  829." 

1  Ames,  History  of  Trover,  11  Harv.  L.  Rev.  379. 


182  CASES   ox   COMMON-LAW   PLEADING. 


2.    Detinue  sur  Trover. 
OF  A   LOST  HORSE. 

Nov^  Narrationes,  f.  65. 

This  shows  you  W.  etc.  that  whereas  he  had  a  horse  of  such  a 
color,  worth  so  much,  on  such  a  day,  in  such  a  year  at  such  a  place, 
he  lost  this  horse,  and  he  went  seeking  it  from  place  to  place,  and 
made  inquiry  for  it  in  Monastery,  fair  and  market  place,  but  could 
learn  nothing  of  his  horse  nor  hear  of  it,  until  such  a  day,  when 
he  came  and  found  his  horse  in  the  custody  of  W.  of  C.,  from 
which  time  until  now  it  has  been  in  the  custody  of  this  same  W. 
in  said  town,  and  he  (the  loser)  told  him  (the  finder)  how  that  he 
had  lost  his  horse  and  thereupon  produced  sufficient  evidence  to 
prove  the  said  horse  to  be  his  before  the  bailiffs  and  the  people  of 
the  town,  and  requested  that  he  (the  finder)  deliver  it  to  him  (the 
loser),  and  this  he  refused  to  do  and  still  refuses,  to  the  injury  and 
damage  of  the  said  W.  twenty  shillings.  And  if  he  will  surrender 
it,  etc. 

"  There  seems  to  be  no  evidence  of  an  action  of  chose  adirree  in 
the  royal  courts.  Nor  has  any  instance  been  found  of  an  action  in 
these  courts  of  detinue  by  a  loser  against  a  finder  prior  to  1371. 
In  that  year  a  plaintiff  brought  detinue  for  an  ass,  alleging  that  it 
had  strayed  from  him  to  the  seigniory  of  the  defendant,  and  that 
he  one  month  afterwards  offered  the  defendant  reasonable  satisfac- 
tion (for  the  keep).  Issue  was  joined  upon  the  reasonableness  of 
the  tender.  Detinue  by  a  loser  against  a  finder  would  probably 
have  come  into  use  much  earlier  but  for  the  fact  .  .  .  tliat  the 
loser  might  bring  trespass  against  a  finder  who  refused  to  restore 
the  chattel  on  request.  Indeed,  in  1455,  where  a  bailiff  alleged  sim- 
ply his  possession,  and  that  the  charters  came  to  the  defendant  by 
finding,  Prisot,  C.  J.,  while  admitting  that  a  bailor  might  have  deti- 
nue against  any  possessor  of  goods  lost  by  the  bailee,  expressed 
the  opinion  that  where  there  was  no  bailment  the  loser  should  not 
bring  detinue,  but  trespass,  if,  on  demand,  the  finder  refused  to  give 
up  the  goods.  Littleton  insisted  that  detinue  would  lie,  and  his 
view  afterwards  prevailed.  It  was  in  this  case  that  Littleton,  in  an 
aside,  said, '  This  declaration  per  inventionem  is  a  new-found  Halli- 
day ;  for  the  ancient  declaration  and  entry  has  always  been  that  the 
charters  ad  manus  et  possessionem  devenerunt  generally  without 
showinjTj  how.'  Littleton  was  right  on  the  point.  But  the  new 
fashion  persisted,  and  detinue  sur  trover  came  to  be  the  common 


THE    PARENT   OF   CASE,    TROVER,   AND    ASSUMPSIT.  183 

mode  of  declaring  wherever  the  plaintiff  did  not  found  the  action 
upon  a  bailment  to  the  defendant.  In  the  first  edition  of  'Liber 
lutrationum'  (1510),  f.  22,  there  is  a  count  alleging  that  the  plain- 
tiff was  possessed  of  a  box  of  charters ;  that  he  casually  lost  it,  so 
that  it  came  to  the  hands  and  possession  of  the  defendant  by  find- 
ing, and  that  he  refused  to  give  it  up  on  request.  The  close  re- 
semblance between  this  precedent  and  the  earlier  one  from  '  Novae 
Narrationes '  will  have  occurred  to  the  learned  reader.  But  there 
is  one  difference.  In  the  count  for  a  chose  adirree  it  is  the  plain- 
tiff who  finds  the  chattel  in  the  defendant's  possession.  In  detinue 
SILT  trover  the  finding  alleged  is  by  the  defendant.  And  until  we 
have  further  evidence  that  the  action  in  the  popular  courts  was  for 
the  recovery  of  the  chattel  and  not  for  damages  only,  it  seems  rea- 
sonable to  believe  that  detinue  sur  trover  in  the  king's  courts  was 
not  borrowed  from  the  action  of  chose  adirree,  but  was  developed 
independently  out  of  detinue  upon  a  general  devenerunt  ad  manus. 
But  whatever  question  there  may  be  on  this  point,  no  one  can  doubt 
that  detinue  sur  trover  was  the  parent  of  the  modern  action  of 
trover. 

"  Add  to  the  precedent  in  '  Liber  Intrationum '  the  single  averment 
that  the  defendant  converted  the  chattel  to  his  own  use,  and  we 
have  the  count  in  trover."  ^ 


Reported  Y.  B.  18  Edward  IV.  f.  23,  pl.  5.     Anno  1479. 

The  earliest  reported  case  in  which  a  defendant  was  charged  with  convert- 
ing to  his  own  use  the  plaintiff's  goods. ^ 

In  an  action  on  the  case  the  plaintiff  declared  that  he  bailed 
certain  tankards  of  silver  to  the  defendant  to  take  good  care  of, 
and  that  the  defendant  broke  them  and  converted  them  to  his  own 
use,  etc.  Tremaile.  It  seems  that  the  action  does  not  lie,  for  it 
appears  he  can  have  a  writ  of  detinue,  for  the  property  is  not 
changed,  and  although  he  can  recover  the  things  themselves,  yet 
he  may  recover  in  damages  for  them,  etc.  Choke.  It  seems  to  me 
otherwise,  and  it  would  be  against  reason  to  require  him  to  prose- 
cute an  action  of  detinue,  and  when  he  has  sued,  he  cannot  have 
the  effect  of  his  suit,  therefore  it  is  vain,  for  the  nature  of  an  action 
of  detinue  is  the  recovery  of  the  thing  itself  in  specie,  or  the  value 
in  damages,  if  it  cannot  be  found,  and  here  it  appears  to  you  that 
latterly  he  could  never  recover  the  thing  itself.  And  also  another 
action  was  sued  here  lately,  and  the  plaintiff  counted  that  he  bailed 

1  Ames,  History  of  Trover,  11  Harv.  L.  Rev.  374,  at  381.      2  i^ij  374^  ^t  384. 


184  CASES    ON    COMMON-LAW   PLEADING. 

to  the  defendant  certain  cloths  of  gold,  who  made  garments  of 
them,  by  which  it  appeared  to  the  court,  that  as  he  could  not  re- 
cover the  thing  itself,  the  action  was  maintained,  etc.  Catesby. 
It  seems  that  he  can  choose  to  have  the  one  or  the  other,  as  if  I 
deliver  twenty  pounds  (£20)  to  Catesby,  to  deliver  to  Pigot,  he  can 
choose  to  have  a  writ  of  account  against  Catesby  or  a  writ  of  deti- 
nue. And  also  if  you  borrow  of  me  my  horse  to  ride  to  York  and 
you  ride  beyond  to  Calbrught,  I  may  have  a  writ  of  detinue,  and  re- 
cover the  horse,  and  then  I  shall  have  an  action  on  my  case,  and 
recover  damages  for  the  use  of  my  horse  beyond  the  agreement. 
And  in  like  manner  if  I  bail  to  you  my'clothes  to  keep  for  me,  and 
you  wear  them,  so  that  tliey  are  injured,  I  shall  have  an  action  of 
detinue,  for  in  all  these  cases  the  property  is  not  changed,  and  then 
he  shall  have  an  action  on  his  case,  and  recover  damage  for  the  loss 
that  he  hath  sustained  by  the  wear  of  his  clothes,  so  here  he  may 
choose  the  one  or  the  other,  etc.  Brian.  It  seems  that  he  hath  an 
action  of  detinue  in  this  case,  and  no  other  action,  and  as  to  what 
is  said  that  he  hath  an  action  of  debt  or  of  account,  I  say  that  he 
shall  have  an  action  of  account  and  no  action  of  debt.  Upon  wliat 
shall  his  action  of  debt*  be  founded  ?  Upon  a  contract,  not  upon  a 
buying  nor  upon  a  borrowing  may  he  declare,  so  this  action  fails,  as 
to  the  other  claim  I  put  to  you  this  question,  if  I  bail  to  you  my 
tankard  to  keep  for  me  and  you  break  it  in  four  pieces,  and  keep 
them  in  your  chest,  is  the  property  changed  or  not?  And  it  was 
said  it  was  not,  therefore  it  is  clear  that  he  shall  have  an  action 
of  detinue,  if  the  property  be  in  him,  that  he  may  recover  the 
thing  itself.  And  I  have  taken  it  for  clear  law  that  he  shall  never 
have  an  action  on  the  case  if  he  can  recover  the  thing  itself.  And 
also  tlie  defendant  in  an  action  of  detinue  may  wage  his  law,  and 
by  that  act  the  plaintiff  in  this  case  shall  be  ousted,  and  so  note 
by  his  opinion  that  he  shall  recover  damages  for  the  breaking  or  for 
the  impairment  of  his  clothes,  except  when  he  recover  all  in 
damage,  as  when  the  goods  are  wholly  destroyed. 

"Detinue  upon  trover,  the  defendant  justified  for  distress  of  the 
same  goods  for  rent  arrear,  judgment  si  actio,  and  did  not  answer 
to  the  trover,  and  good  per  cur.  for  it  is  not  traversable  ;  but  in  the 
case  of  27  Hen.  VIII.  33,  Shelley  said,  that  in  some  case  trover  is 
traversable,  which  Fitzherbert  expressly  denied.  Br.  Detinue  de 
Biens,  pi.  2,  cites  27  Hen.  VIII.  22."  Viner,  Abr.  Detinue,  37, 
pi.  62. 

"  In  detinue  the  plaintiff  counted  upon  trover,  the  defendant  jus- 
tified for  pledges  upon  money  lent,  and  per  Brian  this  is  no  plea 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      185 

without  traversing  the  trover  ;  for  otherwise  he  does  not  encounter 
the  plaintiff."  Br.  Detinue  de  Biens,  pi.  42,  cites  21  Edw.  IV.  55. 
"It  was  formerly  customary  [in  the  declaration  in  trover]  to 
allege  the  possession  in  the  plaintiff,  the  losing  by  him  and  the 
finding  by  the  defendant,  but  the  very  earliest  cases  do  not  show 
that  the  allegation  of  losing  and  finding  was  ever  [in  trover]  held 
material."     McKelvey,  Pleading,  43. 


^^  3.    Trover. 


/<?      .f/i/^*    FULLER  V.   SMITH. 
Ix  THE  Kixg's  Bench.    16 
Reported  3  Salkeld,  366. 


In  trover,  the  plaintiff  declared  of  a  finding  by  ten  persons,  and 
that  nine  of  them  converted  the  good;  upon  not  guilty  pleaded  the 
plaintiff  had  a  verdict  and  judgment  in  C.  B.,  but  upon  a  writ  of 
error  in  B.  R.  the  judgment  was  reversed,  because  the  conversion  is 
the  gift  of  the  action,  for  if  a  man  finds  goods,  it  is  lawful  for  him 
to  take  tliem  up. 


DEFINITION   AND   CHARACTEEISTICS   OF   TROVEPt. 

Having  determined  that  the  gist  of  the  modern  action  of 
trover  is  the  conversion,  four  groups  of  cases  naturally 
suggest  themselves.  They  answer  the  following  questions  : 
1.  What  amounts  to  a  conversion  ?  2.  Who  may  main- 
tain an  action  for  conversion  ?  (a)  As  to  right  of  prop- 
erty. (6)  As  to  right  of  possession.  3.  With  what 
actions  is  trover  concurrent  ?  4.  What  damages  are  re- 
coverable in  trover  ? 

COOPER  AND  ANOTHER  v.  CHITTY  AND   BLACKISTON. 
In  the  King's  Bench.     1756. 
Reported  1  Burrows,  31. 
The  essence  of  trover. 

This  cause  was  twice  argued :  it  came  first  before  the  court,  on 
Monday,  9th  June,  1755  ;  and  again,  upon  Tuesday  the  16th  instant. 


ISO  CASES   ON    COMMON-LAW   PLEADING. 

It  was  an  action  of  trover  brought  by  the  assignees  of  William 
Johns,  a  bankrupt,  against  the  sheriff's  of  London,  who  had  taken 
and  sold  the  goods  of  Johns  in  execution  under  2i.  fieri  facias  which 
had  issued  against  Johns,  at  the  suit  of  one  William  Godfrey. 
On  the  trial,  a  special  case  was  settled : 

Which  case  states,  that  Johns  was  regularly  declared  a  bankrupt, 
on  the  8th  of  December,  1753.  And  as  to  the  rest,  the  following 
times  and  facts  were  stated,  viz. :  That  on  the  5th  of  December, 
1753,  one  Godfrey  obtained  judgment  in  the  Common  Pleas,  against 
the  said  Johns,  and  on  the  same  day  (5th  December,  1753),  execu- 
tion upon  the  said  judgment  was  taken  out  against  him  by  Godfrey, 
and  the  goods  seized  by  the  sheriffs,  under  it ;  that  Johns  committed 
the  act  of  bankruptcy,  4th  December,  1753,  and  on  the  8th  of  the 
same  December,  a  commission  of  bankruptcy  was  taken  out  against 
him ;  and  on  the  very  same  day,  the  commissioners  of  bankruptcy 
executed  an  assignment ;  and  afterwards,  viz. :  on  the  28th  De- 
cember, a  bill  of  sale  of  the  goods  was  made  by  the  sheriffs.  The 
plaintiffs  are  the  assignees  under  the  commission ;  the  defendants 
are  the  sheriffs  of  London,  who  seized  the  goods  under  the  execution. 

The  point  was,  Whether  the  assignees  under  the  commission  of 
bankruptcy  can  maintain  an  action  of  trover  against  the  sheriffs 
(who  executed  this  process  under  a  regular  judgment  and  execu- 
tion) for  seizing  the  goods  under  a  fieri  facias  issued  and  executed 
after  the  act  of  bankruptcy  was  committed,  and  selling  them  after 
the  assignment  was  executed. 

The  counsel  who  argued  for  the  plaintiffs,  made  two  questions,  viz. : 
1st.  Whose  property  the  goods  were,  when  seized  by  the  sheriffs,  by 
virtue  of  this,  fieri  facias?  2dly.  Whose  property  they  were,  when 
sold  by  the  sheriffs  ? 

And  now  (Tuesday,  23d  November,  1756),  Lord  Mansfield  de- 
livered the  opinion  of  the  court,  and  said  they  were  all  agreed,  as 
well  his  two  brethren  then  present  in  court  as  his  brother  Wilmot 
(who  was  at  present  engaged  in  another  place),  in  their  opinion. 

There  are  few  facts  essential  to  this  case ;  and  it  lies  in  a  narrow 
compass. 

He  then  stated  the  case  (which  see  1  Burr.  31),  and  was  very 
particular  in  specifying  the  dates  of  the  several  transactions. 

The  general  question  is^  "  Whether  or  no  the  action  is  maintain- 
able by  the  assignees  agahist  the  defendants,  the  sheriffs,  who  have 
taken  and  sold  the  goods." 

It  is  an  action  of  trover. 

The  bare  defining  the  nature  of  this  kind  of  action,  and  the 
grounds  upon  w^hich  a  plaintiff  is  entitled  to  recover  in  it,  will 


THE    PARENT    OF   CASE,    TROVER,   AND    ASSUMPSIT,  187 

go  a  great  way  towards  the  understanding,  and  consequently  to- 
wards the  solution  of  the  question  in  this  particular  case. 

In  form,  it  is  a  fiction ;  in  substance,  a  remedy  to  recover  the 
value  of  personal  chattels  wrongfully  converted  by  another  to  his 
own  use. 

The  form  supposes  the  defendant  may  have  come  lawfully  by  the 
possession  of  the  goods. 

This  action  lies,  and  has  been  brought  in  many  cases,  where,  in 
truth,  the  defendant  has  got  the  possession  lawfully. 

Where  the  defendant  takes  them  wrongfully,  and  by  trespass,  the 
plaintil!',  if  he  thinks  fit  to  bring  this  action,  waives  the  trespass,  and 
admits  the  possession  to  have  been  lawfully  gotten. 

Hence,  if  the  defendant  delivers  the  thing  upon  demand,  no  dam- 
ages can  be  recovered  in  this  action  for  having  taken  it. 

This  is  an  action  of  tort ;  and  the  whole  tort  consists  in  the 
wrongful  conversion. 

Two  things  are  necesssary  to  be  proved,  to  entitle  the  plaintiff  to 
recover  in  this  kind  of  action:  1st.  Property  in  the  plaintiff;  and 
2dly,  a  wrongful  conversion  by  the  defendant. 

As  to  the  first,  it  is  admitted  in  the  present  case,  that  the  prop- 
erty was  in  the  plaintiffs,  as  on  and  from  the  4th  of  December 
(which  was  before  the  seizure),  by  relation. 

This  relation  the  statutes  concerning  bankrupts  introduced  to 
avoid  frauds.  They  vest  in  the  assignees  all  the  property  that  the 
bankrupt  had  at  the  time  of  what  I  may  call  the  crime  committed 
(for  the  old  statutes  consider  him  as  a  criminal):  they  make  the  sale 
by  the  commissioners  good  against  all  persons  who  claim  by,  from, 
or  under  the  bankrupt,  after  the  act  of  bankruptcy,  and  against  all 
executions  not  served  and  executed  before  the  act  of  bankruptcy. 

Dispositions  by  process  of  law  are  put  upon  the  same  foot  with 
dispositions  by  the  party :  to  be  valid,  they  must  be  completed  be- 
fore the  act  of  bankruptcy. 

Till  the  makhig  of  19  George  II.  c.  32,  if  the  bankrupt  had,  hona 
fide,  bought  goods,  or  negotiated  a  bill  of  exchange,  and  thereupon, 
or  otherwise,  in  the  course  of  trade,  paid  money  to  a  fair  creditor 
after  he  himself  had  committed  a  secret  act  of  bankruptcy,  such 
hona  fide  creditor  was  liable  to  refund  the  money  to  the  assignees, 
after  a  commission  and  assignment ;  and  the  payment,  though  really 
and  hona  fide  made  to  the  creditor,  was  avoided  and  defeated  by  the 
secret  act  of  bankruptcy. 

This  is  remedied  by  that  act,  in  case  no  notice  was  had  by  the 
creditor  (prior  to  his  receiving  the  debt)  "  That  his  debtor  was  be- 
come a  bankrupt,  or  was  in  insolvent  circumstances." 


188  CASES    ON    COMMON-LAW   PLEADING. 

Therefore  as  to  the  first  point,  it  is  most  clear  that  the  prop- 
erty was  in  the  plaintiffs,  as  on  and  from  the  4th  of  December, 
when  the  act  of  bankruptcy  was  committed ;  secondly,  the  only 
question  then  is,  "  Whether  the  defendants  are  guilty  of  a  wrongful 
conversion  ? " 

That  the  conversion  itself  was  wrongful  is  manifest. 

The  sheriffs  had  no  authority  to  sell  the  goods  of  the  plaintiffs, 
but  of  William  Johns  only ;  they  ought  to  have  delivered  these 
goods  to  the  plaintiffs,  the  assignees.  Upon  the  foundation  of  the 
legal  right,  the  chancellor,  even  in  a  summary  way,  would  have 
ordered  them  to  be  delivered  to  the  assignees. 

It  is  admitted,  on  the  part  of  the  defendants,  that  the  innocent 
vendee  of  the  goods  so  seized  can  have  no  title  under  the  sale,  but  is 
liable  to  an  action ;  and  that  Godfrey  the  plaintiff  would  have  no 
title  to  the  money  arising  from  such  sale,  but  if  he  received  it  w^ould 
be  liable  to  an  action  to  refund. 

If  the  thing  be  clearly  wrong,  the  only  question  that  remains  is, 
"Whether  the  defendants  are  excusable,  though  the  act  of  conver- 
sion be  wrongful  ? " 

Though  the  statutes  concerning  bankrupts  rescind  all  contracts 
and  executions  not  completed  before  the  act  of  bankruptcy,  and 
vest  the  property  of  the  bankrupt  in  the  assignees  by  relation,  in 
order  to  an  equal  division  of  his  estate  among  his  creditors,  yet 
they  do  not  make  men  trespassers  or  criminal  by  relation,  w1t,o 
have  innocently  received  goods  from  him,  or  executed  legal  process, 
not  knowing  of  an  act  of  bankruptcy ;  that  w^as  not  necessary  and 
would  have  been  unjust. 

The  injury  complained  of  by  this  action,  for  which  damages  are 
to  be  recovered,  is  not  the  seizure,  but  the  wrongful  conversion. 

The  assignment  was  made  upon  the  8th  of  December ;  the  sale, 
not  till  the  28th  of  December;  the  return,  not  till  the  octave  of 
Saint  Hilary  (which  is  the  20th  of  January). 

The  sheriff  acts  at  his  peril,  and  is  answerable  for  any  mistake : 
infinite  inconveniences  would  arise  if  it  were  not  so. 

At  the  time  of  the  sale  and  return,  it  was  more  notorious  "  that 
tkese  goods  belonged  to  the  plaintiffs  "  than  it  could  probably  have 
been  in  the  case  of  any  third  person ;  because  commissions  of  bank- 
ruptcy and  the  proceedings  under  them  are  public  in  the  neighbor- 
hood, and  indeed  all  over  the  kingdom. 

This  conversion  is  20  days  after  the  assignment. 

The  defendants  have  here  made  a  direct  false  return :  they  have 
returned,  "  that  they  took  the  defendant's  goods,  etc.,"  whereas  they 
were  (at  the  time  of  the  return)  notoriously  the  goods  of  the  as- 


THE    PAKENT   OF    CASE,    TROVER,    AND   ASSUMPSIT,  189 

signees  when  they  were  taken.  They  certainly  might,  and  ought  to 
have  returned  nulla  bona,  which  was  the  truth  ;  for  the  goods  taken 
were,  beyond  all  manner  of  doubt,  the  goods  of  the  assignees,  at  the 
time  when  the  sheriffs  took  them ;  and  the  bankrupt  could  have  no 
goods  after  the  4th  of  December,  when  he  had  committed  an  act  of 
bankruptcy.  They  would  have  been  justified  by  the  truth  of  the 
fact,  if  they  had  made  this  return ;  for  the  bankrupt  neither  had 
uor  could  have  any  goods  of  his  own  at  that  time.  It  is  arguing  in 
a  circle  to  say, "  That  they  could  not  return  mclla  bona,  because  they 
were  obliged  to  sell ;  and  they  were  obliged  to  sell,  because  they 
could  not  return  7iulla  bona." 

The  seizure  is  here  out  of  the  case ;  for  the  point  of  this  action 
turns  upon  the  injurious  conversion. 

Therefore  we  are  all  of  opinion  that  the  plaintiff  is  entitled  to 
recover  in  this  action. 

Therefore,  2^^^''  cur.  unanimously.  Tlie  action  is  maintainable 
in  this  case  against  the  defendants,  and  there  must  be  judgment  for 
the  plaintiffs. 

Judgment  for  the  plaintiffs.^ 

MULGRAVE   v.  OGDEN. 

In  the  Queen's  Bench.     1591. 
Reported  1   Cro.  P]liz.  219. 

Action  sur  trover  of  twenty  barrels  of  butter  ;  and  counts  that  he 
tain  neyligenter  custodivit  that  they  became  of  little  value.  Upon 
this  it  was  demurred,  and  held  by  all  the  Justices,  that  no  action 
upon  the  case  lieth  in  this  case;  for  no  law  compelleth  him  that 
finds  a  thing  to  keep  it  safely ;  as  if  a  man  finds  a  garment,  and 
suffers  it  to  be  moth-eaten  ;  or  if  one  find  a  horse,  and  giveth  it  no 
sustenance  ;  but  if  a  man  find  a  thing  and  useth  it,  he  is  answerable, 
for  it  is  conversion  :  so  if  he  of  purpose  misuseth  it ;  as  if  one 
finds  paper,  and  puts  it  into  the  water,  etc.,  but  for  negligent  keep- 
ing, no  law  punisheth  him.     Et  acljournatur. 

ANONYMOUS. 

Reported  3  Salkeld,  365. 

8.  Where  the  defendant  comes  to  the  possession  by  finding,  in  such 
case  denial  is  a  conversion  ;  but  if  he  had  the  goods  by  delivery, 
there  denial  is  no  conversion,  but  evidence  of  a  conversion  ;  now 

1  The  arguments  and  part  of  the  opinion  are  omitted. 


190  CASES    ON    COMMON-LAW    PLEADING. 

in  both  those  cases  the  defendant  had  a  lawful  possession  (namely) 
either  by  finding  or  by  delivery,  and  where  the  possession  is  law- 
ful, the  plamtiff  must  show  a  demand  and  a  refusal,  to  make  a 
conversion. 

But  if  the  possession  was  tortious,  as  if  the  defendant  takes 
away  the  plaintiff's  hat,  there  the  very  taking  is  a  sufficient  proof 
of  tiie  conversion. 


BALDWIN   V.  COLE. 

At  Nisi  Prius.     170i. 

Reported  6  Modern,  212. 

Trover.     The  case,  upon  evidence,  was  this : 

A  carpenter  sent  his  servant  to  work  for  hire  to  the  queen's  yard ; 
and  having  been  there  some  time,  when  he  would  go  no  more,  the 
surveyor  of  the  work  would  not  let  him  have  his  tools,  pretending 
a  usage  to  detain  tools  to  enforce  workmen  to  continue  until  the 
queen's  work  was  done.  A  demand  and  refusal  was  proved  at 
one  time,  and  a  tender  and  refusal  after. 

Holt,  Chief  Justice.  The  very  denial  of  goods  to  him  that  has  a 
right  to  demand  them  is  an  actual  conversion,  and  not  only  evidence 
of  it,  as  has  been  h olden  ;  for  what  is  a  conversion,  but  an  assuming 
upon  one's  self  the  property  and  right  of  disposing  another's 
goods,  and  he  that  takes  upon  himself  to  detain  another  man's 
goods  from  him  without  cause,  takes  upon  himself  the  rigbt  of 
disposing  of  them ;  for  the  taking  and  carrying  away  another 
man's  goods  is  a  conversion  ;  so  if  one  comes  into  my  close  and  take 
my  horse  and  ride  him,  there  it  is  a  conversion ;  and  here  if  the 
plaintiff  had  received  them  upon  the  tender,  notwithstanding  the 
action  would  have  lain  upon  the  former  conversion,  and  the  hav- 
ing of  the  goods  after  would  go  only  in  mitigation  of  damnges  ;  and 
he  made  no  account  of  the  pretended  usage,  but  compared  it  to  the 
doctrine  among  the  army,  that  if  a  man  came  into  the  service,  and 
brought  his  own  horse,  that  the  property  thereof  was  immediately 
altered  and  vested  in  the  queen  ;  which  he  had  already  condemned. 

And  here  one  of  the  particulars  in  the  declaration  being  ill  laid, 
the  defendant  was  found  not  guilty  as  to  that,  and  guilty  as  to  the 
rest. 


THE    PARENT   OF    CASE,   TROVER,   AND   ASSUMPSIT.  191 


ARMORY  V.   DELAMIRIE. 

'7 

In  the  King's  Bench.     1722. 
Reported  1  Strange,  505. 

The  plaintiff  being  a  chimney-sweeper's  boy  found  a  jewel  and 
carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know 
what  it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who, 
under  pretence  of  weighing  it,  took  out  the  stones,  and  calling  to 
the  master  to  let  him  know  it  came  to  three  half-pence,  the  master 
offered  the  boy  the  money,  who  refused  to  take  it,  and  insisted  to 
have  the  thing  again  ;  whereupon  the  apprentice  delivered  him 
back  the  socket  without  the  stones.  And  now  in  trover  against 
the  master  these  points  were  ruled  :  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  lie  has  such  a  prop- 
erty as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner, 
and  consequently  may  maintain  trover. 

2.  That  the  action  will  lay  against  the  master,  who  gives  a  credit 
to  his  apprentice,  and  is  answerable  for  his  neglect.  Jones  v.  Hart, 
2  Salk.  441,  cor.  Holt,  C.  J.;  Mead  v.  Hammond,  1  Str.  105  ;  Gram- 
mor  V.  Nixon,  ib.  653. 

3.  As  to  the  value  of  the  jewel  several  of  the  trade  were  ex- 
amined to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the 
socket  would  be  worth  ;  and  the  Chief  Justice  directed  the  jury, 
that  unless  the  defendant  did  produce  the  jewel  and  show  it  not  to 
be  of  the  finest  water,  they  should  presume  the  strongest  against 
him,  and  make  the  value  of  their  best  jewels  the  measure  of  their 
damages ;  which  they  accordingly  did. 


FOULDES   V.  WILLOUGHBY. 

Exchequer  of  Pleas.     1841. 

Reported  8  Meeson  and  Welsby,  540. 

In  determini.ig  whether  a  given  act  is  a  conversion,  the  defendant's  intent 
may  be  material. 

Trover  for  divers,  to  wit,  two  liorses.     Plea,  not  guilty. 

The  cause  was  tried  before  Maule,  J.,  at  the  last  Spring  Assizes 
for  Liverpool,  when  it  appeared  that  the  defendant  was  the  occupier 
or  manager  of  a  ferry  by  means  of  steamboats  over  the  river  Mersey, 


192  CASES   ON    COMMOX-LAW    PLEADING. 

from  Birkenhead  to  Liverpool,  and  that  on  the  15th  of  October, 
1840,  the  plaintiff  had  embarked  on  board  the  defendant's  ferry-boat 
at  Birkenhead,  having  with  him  two  horses,  for  the  carriage  of  which 
he  had  paid  the  usual  fare.  It  was  alleged  that  the  plaintiff  mis- 
conducted himself  and  behaved  improperly  after  he  came  on  board 
the  steamboat,  and  when  the  defendant  came  on  board  he  told  the 
plaintiff  that  he  would  not  carry  the  horses  over,  and  that  he  must 
take  them  on  shore.  The  plaintiff  refused  to  do  so,  and  the  defend- 
ant took  the  horses  from  the  plaintiff,  who  was  holding  one  of  them 
by  the  bridle,  and  put  them  on  shore  on  the  landing  slip.  They 
were  driven  to  the  top  of  the  slip,  which  was  separated  by  gates 
from  the  high  road,  and  turned  loose  on  the  road.  They  were 
shortly  afterwards  seen  in  the  stables  of  an  hotel  at  Birkenhead, 
kept  by  the  defendant's  brother.  The  plaintiff  remained  on  board 
the  steamboat,  and  was  conveyed  over  the  river  to  Liverpool.  On  the 
following  day  the  plaintiff  sent  to  the  hotel  for  the  horses,  but  the 
parties  in  whose  possession  they  were  refused  to  deliver  them  up. 
A  message,  however,  was  afterwards  sent  to  him  by  the  hotel-keeper, 
to  the  effect  that  he  might  have  the  horses  on  sending  for  them 
and  paying  for  their  keep ;  and  that  if  he  did  not  send  for  them 
and  pay  for  their  keep,  they  would  be  sold  to  pay  the  expense  of 
it.  The  plaintiff  then  brought  the  present  action.  The  horses  were 
subsequently  sold  by  auction.  The  defence  set  up  at  the  trial  was, 
that  the  plaintiff  had  misconducted  himself  and  behaved  improp- 
erly on  board,  and  that  the  horses  were  sent  on  shore  in  order  to 
get  rid  of  the  plaintiff,  by  inducing  him  to  follow  them.  The 
learned  Judge  told  the  jury  that  the  defendant,  by  taking  the 
horses  from  the  plaintiff  and  turning  them  out  of  the  vessel,  had 
been  guilty  of  a  conversion,  unless  they  thought  the  plaintiff's  con- 
duct had  justified  his  removal  from  the  steamboat,  and  he  had 
refused  to  go  without  his  horses ;  and  that  if  they  thought  the 
conversion  was  proved,  they  might  give  the  plaintiff  damages  for 
the  full  value  of  the  horses.  The  jury  found  a  verdict  for  the 
plaintiff  with  £40  damages,  the  value  of  the  horses. 

In  Easter  Term  last,  a  rule  was  obtained  calling  upon  the  plain- 
tiff to  show  cause  why  the  verdict  should  not  be  set  aside  on  the 
ground  of  misdirection,  both  as  to  the  proof  of  a  conversion,  and 
also  as  to  the  amount  of  the  damages  :  against  which  rule 

W.  H.  Watson  and  Athertou  now  showed  cause.  The  evidence 
showed  that  which  clearly  amounted  to  a  conversion,  and  it  was 
not  affected  by  the  circumstance  that  the  plaintiff  had  the  means 
afterwards,  if  he  had  chosen,  of  obtaining  the  horses  again.  A 
wrongful  removal  of  a  chattel,  even  for  a  few  yards,  amounts  ia 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      193 

law  to  a  conversion.  [Lord  Abinger,  C.  B.  According  to  that 
argument  every  trespass  is  a  conversion.  If  a  man  takes  and  rides 
another  person's  horse  without  his  consent,  however  short  a  dis- 
tance, it  is  in  law  a  conversion.]  Alderson,  B.  In  that  case  there 
is  a  user  of  the  horse.  Lord  Abinger,  C.  B.  In  this  case  the  horses 
were  turned  out  of  the  boat  by  the  defendant  because  the  owner  re- 
fused to  take  them  out,  and  not  with  any  view  to  appropriate  them 
to  his  own  use,  but  to  get  rid  of  their  owner.  Alderson,  B.  If  a 
man  were  to  remove  my  carriage  a  few  yards,  and  then  leave  it, 
would  he  be  guilty  of  a  conversion  ?  In  the  notes  to  Wilbraham  v. 
Snow,  2  Saund.  470,  it  is  said,  "  Whenever  trespass  for  taking  goods 
will  lie,  that  is,  where  they  are  taken  wrongfully,  trover  will  also 
lie,  for  one  may  qualify  but  not  increase  a  tort ; "  citing  Cro.  Eliz. 
824,  Bishop  v.  Montague.  [Lord  Abinger,  C.  B.  I  cannot  agree  to 
that  position,  at  least  to  the  extent  for  which  it  is  now  used.^]  In 
Bac.  Abr.,  Trover  (A),  it  is  said,  "  If  the  goods  of  J.  S.  have  been 
taken  by  J.  N.  in  such  a  tortious  manner  that  an  action  of  trespass 
would  lie,  an  action  of  trover  will  likewise  lie."  So  in  Eolle's  Abr. 
4,  "  Action  sur  case  "  (L) :  —  "  If  a  man  take  my  horse  and  ride  him, 
and  then  re-deliver  him  to  me,  still  I  may  have  an  action  against 
him,  for  it  is  a  conversion,  and  the  re-delivery  is  no  bar  to  the  action, 
and  only  goes  in  mitigation  of  damages ; "  citing  the  Countess  of 
Eutland's  case.  The  mere  exercise  of  dominion  over  a  thing  is,  in 
law,  a  conversion  of  it.  What  is  said  by  Buller,  J.,  in  Syeds  v.  Hay, 
4  T.  R.  264,  is  applicable  to  the  present  case  :  "  If  a  person  take  my 
horse  to  ride,  and  leave  him  at  an  inn,  that  is  a  conversion  ;  for 
though  I  may  have  the  horse  on  sending  for  him,  and  paying  for 
the  keeping  of  him,  yet  it  brings  a  charge  on  me."  In  Mulgrave  v. 
Ogden,  Cro.  Eliz.  219,  which  was  an  action  of  trover  for  twenty 
barrels  of  butter,  with  counts  that  the  defendant  tam  negligen- 
ter  custodivit,  that  they  became  of  little  value,  it  was  held  upon 
demurrer,  by  all  the  justices,  "  that  no  action  on  the  case  lieth  in 
this  case,  for  no  law  compelleth  him  that  finds  a  thing  to  keep  it 
safely ;  as  if  a  man  finds  a  garment  and  suffers  it  to  be  moth-eaten : 
or  if  one  finds  a  horse  and  giveth  it  no  sustenance;  but  if  a  man 
finds  a  thuig  and  useth  it,  he  is  answerable,  for  it  is  a  conversion  : 
so  if  he  of  purpose  misuseth  it,  as  if  one  finds  paper  and  puts  it 
into  the  water,  etc. ;  but  for  negligent  keeping  no  law  punisheth 
him."     And  in  Buller's  Nisi  Prius,  44,  it  is  said,  "  To  determine 

1  In  the  case  cited,  the  beasts  were  taken  absolutely  by  the  defendant's  bailiff  as 
for  a  heriot  due,  the  defendant  afterwards  agreeing  to  the  taking  and  converting 
them.  The  court  differed  in  opinion  whether  trover  was  maintainable,  or  whether 
the  action  should  not  have  been  trespass. 

13 


194  CASES    ON   COMMON-LAW   PLEADING. 

what  evidence  will  be  sufficient  to  prove  a  conversion  in  the  de- 
fendant, it  must  be  known  how  the  goods  came  to  his  hands ;  for  if 
they  came  to  his  hands  by  delivery,  finding,  or  bailment,  an  actual 
demand  and  refusal  ought  to  be  proved ;  but  it  is  not  necessary  to 
prove  an  actual  demand,  if  an  actual  taking  be  proved,  for  the  tak- 
ing, being  unlawful,  is  itself  a  -conversion."  They  also  referred  to 
the  cases  collected  in  Eoscoe  on  Ev.,  5th  ed.  526. 

As  to  the  amount  of  damages,  that  was  a  question  for  the  jury, 
and  if  they  were  satisfied  that  the  defendant  was  guilty  of  the  con- 
version, they  were  fully  warranted  in  giving  the  full  value  of  the 
horses,  which  were,  in  fact,  wholly  lost  to  the  plaintiff. 

Crompton,  in  support  of  the  rule.^ 

Lord  Abinger,  C.  B.  This  is  a  motion  to  set  aside  the  verdict  on 
the  ground  of  an  alleged  misdirection ;  and  I  cannot  help  thinking 
that  if  the  learned  Judge  who  tried  the  cause  had  referred  to  the 
long  and  frequent  distinctions  which  have  been  taken  between  such 
a  simple  asportation  as  will  support  an  action  of  trespass  and 
those  circumstances  which  are  requisite  to  establish  a  conversion, 
he  would  not  have  so  directed  the  jury.  It  is  a  proposition  familiar 
to  all  lawyers,  that  a  simple  asportation  of  a  chattel,  without  any 
intention  of  making  any  further  use  of  it,  although  it  may  be  a 
sufficient  foundation  for  an  action  of  trespass,  is  not  sufficient  to 
establish  a  conversion.  I  had  thought  that  the  matter  had  been 
fully  discussed,  and  this  distinction  established,  by  the  numerous 
cases  which  have  occurred  on  this  subject ;  but,  according  to  the 
argument  put  forward  by  the  plaintiff's  counsel  to-day,  a  bare  as- 
portavit  is  a  sufficient  foundation  to  support  an  action  of  trover.  I 
entirely  dissent  from  this  argument ;  and  therefore  I  think  that  the 
learned  Judge  was  wrong  in  telling  the  jury  that  the  simple  fact 
of  putting  these  horses  on  shore  by  the  defendant  amounted  to  a 
conversion  of  them  to  his  own  use.  In  my  opinion,  he  should  have 
added  to  his  direction,  that  it  was  for  them  to  consider  what  was 
the  intention  of  the  defendant  in  so  doing.  If  the  object,  and 
whether  rightly  or  wrongfully  entertained  is  immaterial,  simply 
was  to  induce  the  plaintiff  to  go  on  shore  himself,  and  the  defend- 
ant, in  furtherance  of  that  object,  did  the  act  in  question,  it  was  not 
exercising  over  the  horses  any  right  inconsistent  with,  or  adverse 
to,  the  rights  .which  the  plaintiff'  had  in  them.  Suppose,  instead  of 
the  horses,  the  defendant  had  put  the  plaintiff  himself  on  shore, 
and,  on  being  put  on  shore,  the  plaintiff  had  refused  to  take  his 
horses  with  him,  and  the  defendant  had  said  he  would  take  them 
to  the  other  side  of  the  water,  and  had  done  so,  would  that  be  a 

1  Crompton's  argument  is  omitted. 


THE   PARENT    OF    CASE,   TROVEK,   AND    ASSUMPSIT.  195 

conversion  ?  That  would  be  a  much  more  colorable  case  of  a  con- 
version than  the  present,  because,  by  separating  the  man  from  his 
property,  it  might,  with  some  appearance  of  fairness,  be  said  the  party 
was  carrying  away  the  horses  without  any  justifiable  reason  for  so 
doing.  Then,  having  conveyed  them  across  the  water,  and  finding 
neither  the  owner  nor  any  one  else  to  receive  them,  what  is  he  to  do 
with  them?  Suppose,  under  those  circumstances,  the  defendant 
lands  them,  and  leaves  them  on  shore,  would  that  amount  to  a  con- 
version ?  The  argument  of  the  plaintiffs  counsel  in  this  case  must 
go  the  length  of  saying  that  it  would.  Then,  suppose  the  reply  to 
be,  that  those  circumstances  would  amount  to  a  conversion,  I  ask, 
at  what  period  of  time  did  the  conversion  take  place  ?  Suppose  the 
plaintiff  had  immediately  followed  his  horses  when  they  were  put 
on  shore,  and  resumed  possession  of  them,  would  there  be  a  conver- 
sion of  them  in  that  case  ?  I  apprehend,  clearly  not.  It  has  been 
argued,  that  the  mere  touching  and  taking  them  by  the  bridle  would 
constitute  a  conversion,  but  surely  that  cannot  be :  if  the  plaintiff 
had  immediately  gone  on  shore  and  taken  possession  of  them,  there 
could  be  no  conversion.  Then  the  question,  whether  this  were  a 
conversion  or  not,  cannot  depend  on  the  subsequent  conduct  of  the 
plaintiff  in  following  the  hor-ses  on  shore.  Would  any  man  say, 
that  if  the  facts  of  this  case  were,  that  the  plaintiff  and  defendant 
had  had  a  controversy  as  to  whether  the  horses  should  remain  in 
the  boat,  and  the  defendant  had  said,  "If  you  will  not  put  them  on 
shore,  I  will  do  it  for  you,"  and  in  pursuance  of  that  threat,  he  had 
taken  hold  of  one  of  the  horses  to  go  ashore  with  it,  an  action  of 
trover  could  be  sustained  against  him  ?  There  might,  perhaps,  in 
such  a  case,  be  ground  for  maintaining  an  action  of  trespass,  because 
the  defendant  may  have  had  no  right  to  meddle  with  the  horses  at 
all :  but  it  is  clear  that  he  did  not  do  so  for  the  purpose  of  taking 
them  away  from  the  plaintiff,  or  of  exercising  any  right  over  them, 
either  for  himself  or  for  any  other  person.  The  case  which  has 
been  cited  from  Strange's  Reports,  of  Bushell  v.  Miller,  seems  fully 
in  point.  There  the  plaintiff  and  defendant,  who  were  porters,  had 
each  a  stand  on  the  custom-house  quay.  The  plaintiff  placed  goods 
belonging  to  a  third  party  in  such  a  manner  that  the  defendant 
could  not  get  to  his  chest  without  removing  them,  which  he  accord- 
ingly did,  and  forgot  to  replace  them,  and  the  goods  were  subse- 
quently lost.  Now  suppose  trespass  to  have  been  brought  for  that 
asportation,  the  defendant,  in  order  to  justify  the  trespass,  would 
plead,  that  he  removed  the  parcels,  as  he  lawfully  might,  for  the 
purpose  of  coming  at  his  own  goods ;  and  the  court  there  said,  that 
whatever  ground  there  might  be  for  an  action  of  trespass,  in  not 


196  CASES   ON    COMIVION-LAW    PLEADING. 

putting  the  package  back  in  its  original  place,  there  was  none  for 
trover,  inasmuch  as  the  object  of  the  party  in  removing  it  was  one 
wholly  collateral  to  any  use  of  the  property,  and  not  at  all  to  dis- 
turb the  plaintiff's  rights  in  or  dominion  over  it.  Again,  suppose  a 
man  puts  goods  on  board  of  a  boat,  which  the  master  thinks  are  too 
heavy  for  it,  and  refuses  to  carry  them,  on  the  ground  that  it  might 
be  dangerous  to  his  vessel  to  do  so,  and  the  owner  of  the  goods 
says,  "If  you  put  my  goods  on  shore,  I  will  go  with  them,"  and  he 
does  so ;  would  that  amount  to  a  conversion  in  the  master  of  the 
vessel,  even  assuming  his  judgment  as  to  the  weight  of  the  goods  to 
be  quite  erroneous,  and  that  there  really  would  be  no  danger  what- 
ever in  taking  them  ?  In  order  to  constitute  a  conversion,  it  is 
necessary  either  that  the  party  taking  the  goods  should  intend  some 
use  to  be  made  of  them,  by  himself  or  by  those  for  whom  he  acts, 
or  that,  owing  to  his  act,  the  goods  are  destroyed  or  consumed,  to 
the  prejudice  of  the  lawful  owner.  As  an  instance  of  the  latter 
branch  of  this  definition,  suppose,  in  the  present  case,  the  defendant 
had  thrown  the  horses  into  the  water,  whereby  they  were  drowned, 
that  would  have  amounted  to  an  actual  conversion  ;  or  as  in  the 
case  cited  in  the  course  of  the  argument,  of  a  person  throwing  a 
piece  of  paper  into  the  water;  for,  in  these  cases,  the  chattel  is 
changed  in  quality,  or  destroyed  altogether.  But  it  has  never  yet 
been  held,  that  the  single  act  of  removal  of  a  chattel,  independent 
of  any  claim  over  it,  either  in  favor  of  the  party  himself  or  any 
one  else,  amounts  to  a  conversion  of  the  chattel.  In  the  present 
case,  therefore,  the  simple  removal  of  these  horses  by  the  defendant, 
for  a  purpose  wholly  unconnected  with  any  the  least  denial  of  the 
right  of  the  plaintiff  to  the  possession  and  enjoyment  of  them,  is  no 
conversion  of  the  horses,  and  consequently  the  rule  for  a  new  trial 
ought  to  be  made  absolute. 

With  respect  to  the  amount  of  damages,  it  was  altogether  a  ques- 
tion for  the  jury.  I  am  not  at  all  prepared  to  say,  that  if  the  jury 
were  satisfied  that  there  had  been  a  conversion  in  this  case,  they 
would  be  doing  wrong  in  giving  damages  to  the  full  value  of  the 
horses.  I  do  not  at  all  rest  my  judgment  on  that  point,  but  put  it 
aside  entirely.  If  the  judge  had  told  the  jury  that  there  was  evi- 
dence in  the  case  from  whence  they  might  infer  that  a  conversion 
of  these  horses  had  taken  place  at  some  time,  it  would  have  been 
different ;  but  his  telling  them  that  the  simple  act  of  putting  them 
on  shore  amounted  to  a  conversion,  I  think,  was  a  misdirection,  on 
which  the  defendant  is  entitled  to  a  new  trial. 

Alderson,  B.     I  am  of  the  same  opinion. 

Gurney,  B.     If  it  had  been  left  to  the  jury,  on  the  whole  of  the 


THE    PARENT    OF   CASE,    TROVER,    AND    ASSUMPSIT.  197 

evidence  in  this  case,  to  say  whether  a  conversion  had  taken  place 
or  not,  I  think  there  was  abundant  evidence  from  which  they  might 
have  drawn  an  atfirmative  conclusion.  But  the  Judge  only  left  that 
question  to  them  on  one  part  of  the  evidence,  namely,  that  of  the 
defendant's  taking  these  horses  out  of  the  boat,  and  putting  them 
ashore ;  and  I  cannot  agree  to  the  position,  that  that  act,  standing 
alone,  amounts  to  a  conversion. 

Eolfe,  B.     I  quite  concur  with  the  rest  of  the  court. ^ 

Rule  absolute. 

PYNE   V.   DOR. 
In  the  King's  Bench.     1785.  / 

Reported  1  Term  Reports,  55. 

This  came  on  in  consequence  of  a  motion  made  on  a  former  day 
by  Mingay  for  a  rule  to  show  cause  why  a  nonsuit  should  not  be 
entered. 

Buller,  J.,  read  the  following  report  [a  part  of  which  is  here 
omitted].  This  was  an  action  of  trover  brought  by  the  tenant  in 
tail,  expectant  on  the  determination  of  an  estate  for  life  with- 
out impeachment  of  waste,,  for  timber  which  grew  upon,  and  had 
been  severed  from,  the  estate,  and  was  in  the  possession  of  the 
defendant.  .  .  . 

Lord  Mansfield,  Ch.  J.  In  the  first  place,  this  was  an  action  of 
trover.  An  action  of  trover  must  be  founded  on  the  property  of 
the  plaintiff.  But  what  property  had  he  in  this  timber  ?  None. 
A  tenant  for  life,  without  impeachment  of  waste,  has  a  right  to  the 
trees  the  moment  they  are  cut  down.^ 

HUNTER  V.  WESTBROOK. 

At  Nisi  Prius.     1827. 

Reported  2  Carrington  and  Payne,  578. 

May  a  thing  taken  from  a  child  be  laid  to  be  the  property  of  the  parent  ? 

Trover  by  the  father  of  a  youth  about  sixteen  years  of  age  (who 
had  been  apprenticed  to  the  defendant,  in  the  business  of  a  chemist 
and  druggist,  and  had  left  his  master  without  his  consent)  to  re- 
cover a  watch,  some  printed  books,  and  several  articles  of  wearing 
apparel,  which  it  was  alleged  the  defendant  refused  to  deliver  up. 

1  The  opinions  of  Aiderson,  B.,  and  Rolfe,  B.,  who  both  concurred,  are  omitted. 

2  £Yhe  rest  of  the  opiuiou,  "  as  to  the  distinction  between  waste  and  destruction," 
is  omitted.] 


198  CASES   ON    COMMON-LAW    PLEADING. 

On  the  cross-examination  of  the  son,  who  was  called  as  a  witness 
in  support  of  the  plaintiff's  case,  he  said,  that  the  articles  in  question 
had  been  given  to  him  by  his  father. 

Abbott,  C.  J.,  upon  this  intimated  to  the  plaintiff''s  counsel  that 
he  thought  the  plaintiff  must  be  nonsuited. 

Campbell,  for  the  plaintiff,  submitted  that  the  son  was  not  eman- 
cipated, and  that  the  property  must  be  considered  as  belonging  to 
the  father.  It  had  been  decided  that,  in  an  indictment,  property 
in  the  situation  of  that  sought  to  be  recovered  in  this  action,  might 
be  laid  as  the  property  of  the  father. 

Abbott,  C.  J.  I  am  of  opinion  that  the  action  is  not  maintain- 
able. I  believe  it  has  been  held  that  things  stolen  from  a  child 
may  be  laid  to  be  the  property  of  the  parent,  but  I  think  that  has 
been  in  the  case  of  very  young  children.  There  must  be  a  right  of 
possession  to  maintain  trover,  which  right  this  plaintiff"  has  not,  I 
am  clearly  of  opinion  that  the  plaintiff  cannot  recover. 

Nonsuit. 

Campbell,  for  the  plaintiff,  requested  leave  to  move  to  enter  a 
verdict  for  a  shilling  damages. 

Abbott,  C.  J.,  inquired  if  there  was  any  other  defence. 

Denman,  C.  S.,  replied  in  the  affirmative. 

His  Lordship  then  said  that  he  could  not  give  the  leave  re- 
quested. 

Campbell,  and  R.  V.  Richards,  for  the  plaintiff. 

Denman,  C,  S.,  and  Payne,  for  the  defendant. 

BETTS    AND   CHURCH   v.   LEE. 

Supreme  Court  of  New  York.     1810. 

Reported  5  Johnson,  348. 

On  certiorari,  from  a  justice's  court.  Lee  sued  the  plaintiffs  in 
error,  in  the  court  below,  for  a  trespass,  in  taking  and  carrying 
away  a  quantity  of  shingles,  and  stuff'  for  making  shingles.  Lee 
had  cut  down  the  timber  of  which  the  shingles  were  made,  on  land 
belonging  to  Robert  L.  Bowne.  An  action  of  trespass  was  brought 
by  Bowne  against  Lee,  for  cutting  down  the  trees ;  and  the  attorney 
of  Bowne  discontinued  the  suit,  on  the  defendant's  paying  $30.  It 
was  proved  that  the  attorney,  who  settled  the  suit  in  belialf  of 
Bowne,  had  said  that  in  compromising  several  suits,  for  this  and 
other  trespasses  of  the  same  kind,  he  had  charged  as  much  to  those 
who  had  not  carried  off  the  timber  cut  down,  as  to  those  who  had 
carried  away  what  they  had  cut ;   and  that  those  who  had  not 


THE'  PARENT   OF   CASE,   TROVER,    AND   ASSUMPSIT.  199 

taken  off  the  timber  cut  down  would  have  as  much  right  to  carry 
it  away  as  those  who  had  done  so  before  the  settlement  of  the 
suits. 

The  land  on.  which  the  timber  was  cut  down,  and  the  shingles 
made,  was  conveyed  by  Bowne  to  the  plaintiffs  in  error ;  and  at 
the  time  of  executing  the  deed  a  power  of  attorney  from  Bowne  to 
the  plaintiffs  in  error  was  also  executed,  authorizing  them  to  sue  all 
persons,  in  the  name  of  Bowne,  for  trespasses,  before  that  time  com- 
mitted, in  cutting  timber  on  the  land.  It  was  proved  that  the  deed 
and  power  of  attorney  were  executed  prior  to  the  suit  brought  by 
Bowne,  and  settled  in  the  manner  above  stated. 

The  plaintiffs  in  error,  as  owners  of  the  land,  claimed  the  timber 
cut  down,  and  prepared  for  making  shingles,  as  well  as  the  shingles 
not  taken  away  by  Lee,  prior  to  the  said  suit,  and  prohibited  him 
from  taking  them,  and  converted  them  to  their  own  use.  The  jury 
found  a  verdict  for  Lee,  the  plaintiff  below,  for  $25,  on  which  the 
justice  gave  judgment. 

The  question  was,  Whose  property  were  the  shingles  and  timber 
cut  down  after  the  settlement  of  the  suit  brought  by  Bowne  against 
Lee  for  cutting  down  the  trees  ?  ^ 

Per  curiam.  The  evidence  detailed  in  the  return  to  the  cer- 
tiorari does  not  prove  that  when  the  suit  for  a  trespass,  brought 
by  Bowne  against  Lee,  was  compromised,  the  attorney  of  Bowne,  or 
the  present  plaintiffs,  sold  the  shingles,  etc.,  to  Lee,  or  permitted 
him  to  take  them.  The  $30  paid  by  Lee  to  the  attorney  was  for 
the  damage  of  the  trespass  he  had  committed  in  cutting  down  the 
trees.  A  loose  and  equivocal  observation,  made  at  another  time  to 
a  stranger,  was  not  sufficient  evidence  to  establish  such  a  sale  or 
consent.  The  settling  of  the  suit  for  the  trespass  and  recovering  a 
compensation  did  not,  per  se,  transfer  to  the  trespasser  a  right  to 
the  timber  cut  down  and  remaining  on  the  land ;  nor  did  the  work- 
ing one  part  into  shingles,  and  the  other  part  into  short  logs,  change 
the  title  to  the  property. 

The  civil  law  required  the  thing  to  be  changed  into  a  different 
species,  and  to  be  incapable  of  l)eing  restored  to  its  ancient  form,  as 
grapes  made  into  wine,  before  the  original  proprietor  could  lose  his 
title ;  nor  even  then  did  the  other  party  acquire  any  title  by  the 
accession,  unless  the  materials  had  been  taken  away,  in  ignorance 

1  As  to  the  right  of  one  co-tenant  of  a  chattel  to  convert  it  to  its  usual  and  profit- 
able use  without  being  liable  in  trover  to  the  other  co-tenants,  see  Fennings  v. 
Lord  Grenville,  1  Taunton,  241 ;  where  A.  and  B.  were  co-tenants  of  a  whale,  and  A. 
refused  to  deliver  lialt'of  the  whale  to  R.,  but  cut  it  up  and  tried  out  the  oil.  As  to  co- 
tenants  of  realty,  see  Matts  v.  Hawkins,  5  Taunton,  20 ;  Cubitt  v.  Porter,  8  B.  and  C 
257 ;  1  Chitty,  89. 


200  CASES   ON   COMMON-LAW    PLEADING. 

of  their  being  the  property  of  another.  (Vinnius,  Inst.  lib.  2,  tit.  1, 
§  25  ;  Dig.  10,  4,  12,  3.)  The  civil  law,  in  its  usual  wisdom,  gave 
no  encouragement  to  trespassers. 

But  this  very  point  has  been  decided  against  the  trespasser,  by 
the  English  common  law.  It  is  laid  down  in  the  Year  Books,  after 
solemn  argument  on  demurrer,  that  whatever  alteration  of  form  any 
property  has  undergone,  the  owner  may  seize  it,  in  its  new  shape,  if 
he  can  prove  the  identity  of  the  original  materials ;  as  if  leather 
be  made  into  shoes,  or  cloth  into  a  coat ;  or  a  tree  to  be  squared  into 
timber.  (5  Hen.  VII.  15 ;  12  Hen.  VIII.  10  ;  Fitz.  Abr.  Bar.  144 ; 
Bro.  tit.  Property,  23.)  We  are  of  opinion,  therefore,  that  the  judg- 
ment below  ought  to  be  reversed. 

Judgment  reversed. 


GORDON   V.    HARPER. 

/^  In  the  King's  Bench.     1796. 

Reported  7  Term  Reports,  9. 

To  maintain  trover,  the  plaintiff  must  have  both  rights  of  property  and 
possession. 

In  trover  for  certain  goods,  being  household  furniture,  a  verdict 
was  found  for  the  plaintiff,  subject  to  the  opinion  of  this  court  on 
the  following  case  :  On  the  1st  October,  1795,  and  from  thence 
until  the  seizing  of  the  goods  by  the  defendants  as  after  mentioned, 
Mr.  Biscoe  was  in  possession  of  a  mansion-house  at  Shoreham  and 
of  the  goods  in  question,  being  the  furniture  of  the  said  house,  as 
tenant  of  the  house  and  furniture,  to  the  plaintiff,  under  an  agree- 
ment made  between  the  plaintiff  and  Mr.  Biscoe,  for  a  term  which 
at  the  trial  of  this  action  was  not  expired.  The  goods  in  question 
were  on  the  24th  of  October  taken  in  execution  by  the  defendant, 
then  sheriff  of  the  county  of  Kent,  by  virtue  of  a  writ  of  testatum 
fieri  facias  issued  on  a  judgment  at  the  suit  of  J.  Broomhead  and 
others,  executors  of  J.  Broomhead  deceased,  against  one  Borrett,  to 
whom  the  goods  in  question  had  belonged,  but  which  goods,  pre- 
vious to  the  agreement  between  the  plaintiff  and  Mr.  Biscoe,  had 
been  sold  by  Borrett  to  the  plaintiff.  The  defendant  after  the 
seizure  sold  the  goods.  The  question  is,  whether  the  plaintiff  is 
entitled  to  recover  in  an  action  of  trover. 

Burrough  for  the  plaintiff  admitted  that  the  action  of  trover  is 
founded  in  the  plaintiff's  right  of  property  in  the  goods  to  be  re- 
covered, and  that  though  an  actual  possession  by  him  before  the 
conversion  was  not  necessary,  yet  that  he  must  also  have  the  right 


THE   PARENT   OF   CASE,    TROVER,   AND    ASSUMPSIT.  201 

of  possession  at  the  time  of  the  action  brought.  But  he  contended 
that  in  this  case  the  plaintiff  had  the  legal  possession.  The  intent 
of  the  parties  to  the  agreement  was  no  more  than  that  the  tenant 
should  have  the  use  of  the  furniture  during  the  term ;  the  owner- 
ship and  property  remained  in  the  landlord,  the  plaintiff.  If  the 
tenant  had  injured  or  destroyed  it,  the  plaintiff  might  have  main- 
tained trespass ;  according  to  the  case  put  in  Co.  Lit.  57  a,  that  if  a 
man  lend  his  sheep  to  another  to  dung  his  land,  and  he  kill  them, 
trespass  lies  notwithstanding  the  delivery.  So  here  as  the  tenant 
had  only  the  use  and  not  the  property  of  the  goods,  as  soon  as  they 
were  put  in  that  state  wherein  he  could  no  longer  enjoy  the  use  of 
them  in  the  manner  agreed  upon,  the  full  dominion  of  the  plaintiff 
revived.  In  the  same  manner  during  a  lease  of  lands,  the  tenant 
has  a  right  to  the  use  of  the  trees  growing  thereon  for  every  pur- 
pose except  that  of  cutting  them  down  ;  but  as  soon  as  they  are 
cut  down,  although  by  a  stranger,  his  interest  ceases,  and  the  pos- 
session as  well  as  property  in  the  timber  vest  in  the  owner  of  the 
inheritance.  Even  in  the  case  of  an  execution  against  the  tenant, 
the  sheriff  could  not  seize  and  sell  furniture  let  with  the  premises, 
because  the  writ  of  execution  only  authorizes  him  to  sell  the  goods 
of  the  tenant ;  which  shows  that  in  law  he  is  only  considered  as 
entitled  to  the  use,  and  has  not  the  property  in  them ;  and  he  cited 
Plow.  524  But  the  case  of  Ward  v.  Macauley,  4  Term  Rep.  489, 
is  directly  in  point ;  there  the  landlord  of  a  ready-furnished  house 
brought  trespass  against  the  sheriff  for  seizing  the  furniture  under 
an  execution  against  the  tenant :  the  court  held  the  action  miscon- 
ceived ;  and  Lord  Kenyon  said  that  the  remedy  was  by  an  action 
of  trover ;  and  he  took  the  distinction  between  trespass  and  trover, 
the  former  of  which  was  founded  upon  possession,  the  latter  on 
property.  Here  the  right  of  property  always  remained  in  the  plain- 
tiff, and  as  soon  as  the  temporary  and  qualified  use  which  he  had 
given  to  another  was  determined,  which  was  the  case  when  the 
goods  could  no  longer  be  enjoyed  in  the  stipulated  manner,  he  had 
a  right  to  resume  the  actual  possession  of  them  from  the  hands  of 
the  wrong-doer. 

Best,  contra,  was  stopped  by  the  court. 

Lord  Kenyon,  Ch.  J.  I  forbear  to  deliver  any  opinion  as  to  what 
remedy  the  landlord  has  in  this  case,  not  being  at  present  called  upon 
so  tq,do:  but  it  is  clear  that  he  cannot  maintain  trover. 

Ashhurst,  J.  I  have  always  understood  the  rule  of  law  to  be, 
that  in  order  to  maintain  trover  the  plaintiff  must  have  a  right  of 
property  in  the  thing,  and  a  right  of  possession,  and  that  unless 
both  these  rights  concur,  the  action  will  not  lie.     Now  here  it  is 


202  CASES    ON    COMMON-LAW    PLEADING. 

admitted  that  the  tenant  had  the  right  of  possession  during  the 
continuance  of  his  terra,  and  consequently  one  of  the  requisites  is 
wanting  to  the  landlord's  right  of  action.  It  is  true  that  in  the 
present  case  it  is  not  very  probable  that  the  furniture  can  be  of  any 
use  to  any  other  than  the  actual  tenant  of  the  premises :  but  sup- 
posing the  things  leased  had  been  manufacturing  engines,  there  is 
no  reason  why  a  creditor  seizing  them  under  an  execution  should 
not  avail  himself  of  the  beneficial  use  of  them  during  the  term, 

Grose,  J.  The  only  question  is  whether  trover  will  lie  where  the 
plaintiff  had  neither  the  actual  possession  of  the  goods  taken  at  the 
time,  nor  the  right  of  possession.  The  common  form  of  pleading  in 
such  an  action  is  decisive  against  him ;  for  he  declares  that  being 
possessed,  etc.,  he  lost  the  goods ;  he  is  therefore  bound  to  show 
either  an  actual  or  a  virtual  possession.  If  he  had  a  right  to  the 
possession,  it  is  implied  by  law.  Where  goods  are  delivered  to  a  car- 
rier, the  owner  has  still  a  right  of  possession  as  against  a  tortfeasor, 
and  the  carrier  is  no  more  than  his  servant.  But  here  it  is  clear 
that  the  plaintiff  had  no  right  of  possession ;  and  he  would  be  a 
trespasser  if  he  took  the  goods  from  the  tenant ;  then  by  what  au- 
thority can  he  recover  them  from  any  other  person  during  the  term  ? 
It  is  laid  down  in  some  of  the  books  that  trover  lies  where  detinue 
will  lie,  the  former  having  in  modern  times  been  substituted  for  the 
old  action  of  detinue.  I  will  not  say  that  it  is  universally  true  that 
the  one  action  may  be  substituted  for  the  other,  because  the  au- 
thorities referred  to  in  support  of  that  proposition  do  not  apply  to 
that  extent :  but  certainly  it  may  be  said  to  be  a  good  general  cri- 
terion. ...  It  appears  now  very  clearly  upon  examining  that  point 
that  trover  will  not  lie  in  any  case  unless  the  property  converted 
was  in  the  actual  or  implied  rightful  possession  of  the  plaintiff. 
In  this  case  the  plaintiff  had  neither  the  one  nor  the  other  pending 
the  demise,  and  when  that  is  determined,  perhaps  he  may  have  his 
goods  restored  to  him  again  in  the  same  state  in  which  they  now 
are,  when  it  will  appear  that  he  has  not  sustained  that  damage 
which  he  now  seeks  to  recover  in  this  action. 

Lawrence,  J.,  concurred. 

Posted  to  the  defendant.^ 

1  The  opinion  of  Lawrence,  J.,  and  parts  of  the  opinions  of  Lord  Kenyon,  C.  J., 
and  Grose,  J.,  are  omitted. 

f 


THE    PARENT   OF   CASE,    TROVER,   AND   ASSUMPSIT.  203 


BISHOP  V.    MONTAGUE. 
In  the  Common  Pleas.     1044. 
Reported  2  Croke's  Elizabeth,  824. 
Either  trover  or  trespass  will  lie  for  goods  taken  by  wrong. 

Action  sur  trover,  and  conversion  of  five  oxen.  The  defendant 
pleaded  not  guilty.  By  special  verdict  it  was  found  that  one  J.  S., 
as  bailiff  to  the  defendant,  took  those  beasts,  as  for  heriots  due  to 
the  defendant,  where  there  were  not  any  due,  and  without  any  com- 
mand from  the  said  Viscountess  Montague  ;  but  that  afterwards  she 
aoreed  thereto,  and  converted  them  ;  and  after  that  the  bailiff  died  ; 
and,  Whether  this  action  lies,  or  that  he  should  have  brought  a 
general  action  of  trespass  ?  was  the  question. 

Walmsley  and  Kingsmil  held,  that  this  action  lies  not ;  for  when 
the  bailiff  took  them  tortiously,  the  property  and  the  possession  is 
divested  out  of  the  phuntiff,  so  that  he  cannot  suppose  that  he  was 
possessed  of  them  until  he  lost  them,  and  until  they  came  to  tlie  de- 
fendant's hands ;  and  the  defendant,  by  assenting  to  the  taking,  is  a 
trespasser  ah  initio  ;  as  38  Assize,  9 ;  38  Edw.  III.  pi.  18,  and  40 
Edw.  III.  pi.  20,  are.  Therefore,  where  he  might  have  had  a  gen- 
eral writ  of  trespass,  he  cannot  have  any  other  manner  of  action ; 
especially  not  this  action,  which  differs  from  it  in  nature  and  quality. 

Anderson  and  Warberton,  e  contra.  They  agreed,  that  an  assent 
before  or  after  the  taking  of  the  goods  made  her  trespasser  ah  initio, 
and  to  be  punished  as  a  trespasser  ;  but  not  an  assent  after  to  a  bat- 
tery formerly  done ;  or  to  that  which  is  a  tort,  and  punishable  by 
the  statute  law  ;  as  an  assent  to  a  riot  or  forcible  entry,  after  it  be 
done,  shall  not  make  him  punisiiable.  But  although  trespass  lies, 
yet  he  may  have  this  action  if  he  will,  for  he  hath  his  election  to 
bring  either.  And  as  he  may  have  detinue  or  replevin  for  goods 
taken  by  a  trespass,  which  affirms  always  property  in  him  at  his 
election,  so  he  may  have  this  action  ;  for  one  may  qualify  a  tort,  but 
not  increase  a  tort.  So  he  hath  election  to  make  it  a  tortious  prisal 
or  not :  which  is  the  reason,  that  if  goods  be  taken  by  a  trespasser, 
yet  if  the  party  from  whom  they  were  taken  be  attainted  of  felony, 
he  shall  forfeit  them  ;  for  the  right  and  property  remains  in  him, 
and  the  law  shall  adjudge  them  in  him,  until  he  makes  his  election 
to  the  contrary,  by  bringing  a  writ  of  trespass.  Wherefore  here  he 
might  maintain  the  one  writ  or  other,  at  his  election.  Wherefore, 
etc. 


204  CASES    ON    COMMON-LAW   PLEADING. 

Section   III. 

ASSUMPSIT. 
THE    ACTIONS  OF   DEBT   AND   ASSUMPSIT  COMPAKED. 

1.    The  Genealogy  and  Characteristics  of  Debt  and  Assumpsit. 

There  are  certain  fundamental  distinctions  between  debt 
and  assumpsit.  In  its  origin,  debt  was  proprietary,  origin- 
ally descending,  as  we  have  seen,  from  an  ancient  writ  of 
right  for  services  due  by  virtue  of  contract  of  tenure,  which 
was  followed  by  a  writ  of  right  for  money  due  by  virtue  of 
contract  of  tenure,  which  was  followed  by  a  writ  for  money 
loaned,  from  which  the  formed  writ  of  debt  descends.  The 
writ  of  right  was  a  real  action,  and  strictly  proprietary.  It 
lay  to  restore  to  the  demandant  certain  land  of  which  he 
had  the  title  in  fee  simple.  The  writ  of  debt  lay  to  restore 
to  the  plaintiff  a  certain  sum  of  money  of  which  he  had  the 
title  ;  and  that,  too,  not  by  virtue  of  any  contract,  but 
simply  as  a  matter  of  proprietary  right.  A.,  who  had  sold 
his  ox  to  B.  for  <£10,  got  title  to  <£10  in  B's.  pocket  at  the 
instant  when  A.  delivered  the  ox  to  B.  and  B.  got  title  to 
it.  A.  would  not  say  to  B.  when  he  sued  B.  in  a  writ  of 
debt,  "Pay  me  the  .£10  you  promised  me;  "  he  would  ex- 
claim, "  Restore  to  me  the  <£10  of  which  you  deforce  me, 
for  it  is  mine." 

Assumpsit,  unlike  debt,  was  not  in  its  origin  proprietary, 
descended  from  the  highest  form  of  writ  to  recover  the  high- 
est property  known  to  the  law.  It  was  a  bastard  action, 
an  offspring  of  the  personal  writ  of  trespass  on  the  case,  and 
was  anciently  known  as  trespass  on  the  case  upon  promises. 
Its  foundation  is  an  assumpsit,  an  undertaking,  a  promise. 

A.  sold  his  ox  to  B.  for  as  much  as  it  was  worth,  which 
B.  promised  to  pay;  or  for  £10,  which  B.  promised  to 
pay.  A.  sued  B.  in  assumpsit.  A.  would  not  say  to  B., 
"Give  me  my  ox's  value;  it  is  mine;"  or,  "  Give  me  my 
.£10,  because  the  money  is  mine;  I  have  the  title  to  the 
very    coins    in   your    pocket    that    make   the    sum " :    he 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       205 

would  declare  upon  a  promise,  and  the  foundation  of  his 
action  would  be  that  promise,  coupled  with  an  allegation 
that  B.  intended  to  deceive  him;  for  just  as  in  the  mod- 
ern action  of  debt  there  remain  traces  of  its  real  property 
ancestor,  so  in  the  modern  action  of  assumpsit  there  lin- 
gered not  so  very  long  ago  the  characteristics  of  its  parent 
action,  trespass  on  the  case  for  the  deceitful  breach  of  a 
promise. 

We  have  noted  more.  We  have  seen  that  debt  never  lay 
except  for  a  sum  certain,  but  that  assumpsit  lay  to  recover 
damages  for  the  breach  of  an  unliquidated  simple  contract ; 
that  debt  lay  on  specialties,  simple  contracts,  statutes,  and 
records,  while  assumpsit  never  lay  on  specialties ;  and  that 
debt  could  be  defeated  by  a  peculiar  trial  called  wager  of 
law,  which  did  not  prevail  in  assumpsit. 

But  we  now  come  to  notice  a  branch  of  assumpsit  that 
bears  a  most  striking  resemblance  to  debt.  That  branch  is 
indebitatus  assumpsit. 


DEBT   AND   INDEBITATUS   ASSUMPSIT. 

In  Hard's  case,  1  Salk.  23,  it  is  said,  "  Indebitatus  as- 
smnpsit  will  lie  in  no  case  but  where  debt  lies."  In  Walker 
V.  Walker,  Holt,  328,  per  Holt,  C.  J.,  "  This  is  merely  a 
wager,  and  no  indebitatus  assumpsit  lies  for  it ;  for  to  make 
that  lie,  there  must  be  a  work  done,  or  some  meritorious 
claim  for  which  debt  lieth."  See  Parol  Contracts  Prior  to 
Assumpsit,  Ames,  8  Harv.  L.  Rev.  262.  In  Bovey  v. 
Castleman,  1  Ld.  Ray.  69,  it  is  said,  "  For  mutual  promises 
assumpsit  may  lie,  but  not  indebitatus  assumpsits  Here, 
then,  are  words  which  enable  us  to  draw  a  sharp  line  be- 
tween debt  and  indebitatus  assumpsit  on  the  one  hand,  and 
assumpsit,  apart  from  indebitatus  assuynpsit,  on  the  other. 


Debt.     Indebitatus     as- 
sumpsit. 


Assumpsit,  apart  from  in- 
debitatus assumpsit. 


For  the  moment,  then,  let  us  compare  debt  with  assump- 
sit, apart  from  the  indebitatus  count.     Striking  as  the  dis- 


206  CASES    ON    COMMON-LAW   PLEADING. 

tinctions  already  noted  are,  if  we  go  back  far  enough  we 
find  a  distinction  that  is  fully  as  interesting  as  any  that  we 
have  yet  stated. 

The  characteristic  consideration  of  assumpsit,  which  we 
shall  here  investigate,  was  in  the  form  of  detriment  to  the 
promisee,  while  that  of  debt  took  the  form  of  gain  to  the 
promisor.  The  distinction  between  gain  to  the  promisor 
and  detriment  to  the  promisee  may  be  made  clear  by  two 
simple  examples.  A.  said  to  B.,  a  doctor,  "  I  am  sick  ;  cure 
me,  and  1  will  pay  you  £10."  B.  effected  a  cure.  Clearly 
there  was  a  gain  to  A.,  the  promisor.  Again,  A.  said  to  B., 
a  doctor,  "  Go,  nourish  yonder  stranger  with  your  physics, 
and  make  him  well,  and  I  will  give  you  £10."  B.  thus 
made  the  stranger  well.  A.  received  no  worldly  gain.  But 
B.  had  parted  with  time,  trouble,  and  medicine  ;  he  had  suf- 
fered a  detriment.  B.  sought  against  A.  an  action  of  debt. 
Anciently,  were  we  to  have  consulted  the  precedents,  we 
should  have  had  to  deny  B.  his  writ. 

Thus  in  Y.  B.  9  Hen.  V.  p.  14,  pi.  23,  A.  had  a  claim  for 
£10  against  T.  A.  released  this  claim  upon  B.'s  promise  to 
pay  him  the  full  amount.  B.  did  not  pay.  A.  brought  a  writ 
of  debt  against  B.  Cokaine  said,  "To  my  mind  the  matter 
is  not  sufficient.  Qucere,  Out  of  nothing  \_nudo pacto']  no  ac- 
tion arises."  And  this  was  the  opinion  of  the  court.  The 
plaintiff  failed  because  the  benefit  of  the  release  was  received 
by  T.  Parol  Contracts  Prior  to  Assumpsit,  Ames,  8  Harv. 
L.  Rev.  262. 

Here,  then,  is  a  sharp  difference  between  debt,  on  the 
one  side,  and  assumpsit,  apart  from  indebitatus  assumpsit^ 
on  the  other. 

But  later,  we  find  that  this  distinction  in  part  breaks  down. 
In  Y.  B.  37  Hen.  VI.  p.  9,  pi.  18,  Moyle,  J.,  said,  "  If  I  say  to 
a  surgeon  that  if  he  will  go  to  one  J.,  who  is  ill,  and  give 
him  medicine  and  make  him  safe  and  sound,  he  shall  have 
100  shillings,  now  if  the  surgeon  gives  J.  the  medicines  and 
makes  him  safe  and  sound,  he  shall  have  a  good  action 
[debt]  against  me  for  the  100s.,  and  still  the  thing  is  to 
another  and  not  to  the  defendant  himself,  and  so  he  has  not 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      207 

quid  pro   quo,  but  the   same  in  effect."     Parol   Contracts 
Prior  to  Assumpsit,  Ames,  8  Harv.  L.  Rev.  262. 

This  reasoning  of  Moyle,  J.,  met  with  general  favor,  and 
it  became  a  settled  rule  that  whatever  would  constitute  a 
quid  pro  quo,  if  rendered  to  the  defendant  himself,  would  be 
none  the  less  a  quid  pro  quo,  though  furnished  to  a  third 
person,  provided  that  it  was  furnished  at  the  defendant's 
request,  and  the  third  person  incurred  no  liability  therefor 
to  the  plaintiff.  Thus  a  father  is  liable  for  physic  provided 
for  his  daughter,  Stonehouse  v.  Bodvil,  T.  Ray.  67  ;  1  Keb. 
439,  s.  c.  :  a  mother  for  board  furnished  to  her  son,  Bret 
V.  J.  S.,  Cro.  El.  756 ;  and  a  mother  was  charged  in  debt 
by  a  tailor  for  embroidering  a  gown  for  her  daughter's 
maid ;  Shandois  v.  Stinson,  Cro.  El.  880. 

We  said  above  that  these  cases  are  illustrations  of  where 
the  distinction  between  the  kinds  of  consideration  necessary 
to  support  debt  and  assumpsit  in  part  breaks  down.  But 
let  us  observe  that  all  these  seem  to  be  cases  where  the 
person  benefited  was  not  himself  liable  to  the  plaintiff  for 
the  benefit  received.  Thus,  where  physic  was  furnished  to 
A.'s  daughter,  and  A.  held  liable  for  it,  only  A.,  the  father, 
was  liable  in  debt.  The  daughter  was  not.  For  "there 
cannot  be  a  double  debt  upon  a  single  loan."  Per  curiam, 
Marriott  v.  Lister,  2  Wils.  141,  142. 

And  we  may  lay  down  the  rule  that  "  It  is  an  indispen- 
sable condition  of  the  defendant's  liability  in  debt  in  cases 
where  another  person  received  the  actual  benefit,  that  this 
other  person  should  not  himself  be  liable  to  the  plaintiff 
for  the  benefit  received."  Parol  Contracts  Prior  to  Assump- 
sit, Ames,  8  Harv.  L.  Rev.  263. 

All  this  may  seem  at  first  blush  a  recapitulation  of  the 
cases  bearing  on  the  point  already  presented  under  the 
head  of  "  Debt."  But  it  is  more.  It  is  an  introduction  to 
the  action  of  assumpsit,  and  marks  a  rough  boundary  line 
between  that  action  and   debt. 


203  CASES   ON    COMMON-LAW    PLEADING. 

THE   HISTORY   OF   ASSUMPSIT. 

TRESPASS   ON"   THE   CASE   AND   ASSUMPSIT 

(a)    Early  Necessitrj  of  alleging  an  Assumpsit  in  Actions  for 
Misfeasance. 

1.  Anciently,  case  lay  for  damages  resulting  from  the  de- 
fendant's condLict  with  reference  to  the  plaintiff's  person  or 
property,  even  though  there  was  no  forcible  contact :  but 
there  must  have  been  an  express  undertaking  on  the  de- 
fendant's part,  improperly  performed,  to  make  him  liable. 

2.  If,  however,  the  nature  of  his  occupation  required 
him  to  act  with  reasonable  skill,  no  express  undertaking 
w^as  necessary. 

(1)   ANON. 
Reported  Y.  B.  22  Assizes  94,  pl.  41. 

L  of  B.  makes  complaint  by  bill  that  G.  of  F.  on  a  certain  day  and 
year  at  B.  on  the  Humber,  had  undertaken  to  carry  his  beast  taken, 
etc.,  in  his  boat,  over  the  waters  of  the  Humber  safe  and  sound, 
whereas  did  the  said  G.  overload  his  boat  with  other  horses,  by 
which  overloading  the  beast  perished,  to  the  injury  and  damage, 
etc. 

Eichm.  [prayed]  judgment  of  the  bill  [for  that]  it  declares 
acrainst  us  no  wrong  [tort]  but  proves  that  he  should  have  action 
by  writ  by  way  of  covenant,  or  by  way  of  trespass.  Wherefore, 
etc. 

Bank.  It  appears  that  you  did  him  a  trespass  when  you  over- 
loaded the  boat,  by  which  his  beast  perished,  etc.     Wherefore,  etc. 

Eichm.     Of  nothing  guilty,  'prest  d'averrer  nostre  bill,  etc. 

(1)   MOSLEY  V.    FOSSET. 
Reported  Moore,  543,  pl.  720.    Anno  1598. 
An  early  necessity  for  an  express  undertaking  in  case  of  bailees. 

Action  on  the  case,  and  [the  plaintiff]  declares  that  the  defend- 
ant took  from  the  plaintiff  a  gelding  to  pasture  for  2s.  per  week, 
and  the  defendant  was  to  keep  him  safely,  and  redeliver  him  [to 
the  plaintiff]  when  he  should  be  required.  And  moreover,  [he 
declares],  that  the  defendant  watched   the   horse  so  negligently 


THE  PARENT  OF  CASE,  TROVEK,  AND  ASSUMPSIT,       209 

that  it  was  taken  by  unknown  persons.  The  defendant  demurred.* 
And  the  justices  were  divided,  two  on  each  side.  Popham  and 
Tenner,  that  the  action  does  not  lie  without  alleging  a  request  for 
redelivery,  and  also  alleging  that  the  horse  was  stolen,  dead,  or  lost. 
Gawdy  and  Clench,  e  contra,  for  that  the  action  is  founded  on  the 
negligence  and  special  assumpsit  to  keep  safely.  But  all  agreed 
that  without  such  special  assumpsit  the  action  would  not  lie. 

RICHES   V.   BRIGGS. 

In  the  King's  Bench.     1602. 

Reported  Yelverton  4  a.^     Cro.  Eliz.  883  s.  c. 

The  bailee  charged  iu  an  action  on  the  case  upon  a  gratuitous  bailment. 

In  an  action  on  the  case,  the  plaintiff  declared  that  in  considera- 
tion he  had  delivered  to  the  defendant  twenty  quarters  of  wheat, 
the  defendant  promised  upon  request  to  deliver  the  same  wheat 
again  to  the  plaintiff.  And  adjudged  a  good  consideration  ;  ^  for  by 
Popham  and  tot.  cur.  the  very  possession  of  the  wheat  might  be  a 
credit  and  good  countenance  to  the  defendant  to  be  esteemed  a  rich 
farmer  in  the  country,  as  in  case  of  the  delivery  of  £1000  in 
money  to  deliver  again  upon  request;  for  by  having  so  much  money 
in  his  possession  he  may  be  preferred  in  marriage.  Quarc,  for  it 
seems  an  hard  judgment ;  for  the  defendant  has  not  any  manner  of 
profit  to  receive,  but  only  a  bare  possession. 

Nuta,  The  truth  of  the  case  was  (which  doth  not  alter  the  reason 
supra)  that  the  plaintiff  had  delivered  to  the  defendant  the  said 
twenty  quarters  of  wheat  to  deliver  over  to  J.  S.,  to  whom  the  plain- 
tiff was  indebted  in  so  many  quarters,  and  the  defendant  promised 
to  deliver  the  same  quarters  of  wheat  to  J.  S.^     And  because  they 

1  Metcalf  s  edition. 

■■^  Mr.  Justice  iMetcalf  in  his  note  to  the  above  case  sa\'s,  "  The  first  reported  case, 
in  which  it  was  holdea  that  a  consideration  was  necessary  to  supj)ort  a  promise,  is 
Watton  V.  Brinth,  2  lien.  IV.  3  b.  Defendant  promised  to  repair  certain  houses  of  the 
plaintiff,  and  had  neglected  to  do  it.  The  phiintiff  was  nonsuited,  because  no  consid- 
eration was  stated  for  the  promise.  The  next  case  was  against  a  carpenter,  stating 
that  he  had  undertaken  to  Iniihl  a  house  for  the  plaintiff,  and  had  not  built  it.  It  was 
held  to  be  nudnm  pactum,  becau.se  no  consideration  was  alleged.  11  Hen.  IV".  33  a. 
The  question  whetlier  an  action  would  lie  for  a  nonfeasance  when  there  was  no  con- 
sideration was  afterwards  agitated  in  numerous  cases,  and  the  same  jjrincijde  uni- 
formly recognized.  14  Hen.  VI.  18  b;  19  Hen.  VI.  49  a;  20  Hen.  VI.  34  a;  2  Hen. 
VII.  11  ;  21  Hen.  VII  41 ;  Stath.  Abr.  Accions  sur  le  cas,  jd.  20;  Finch,  Descrip.  of 
Com.  Law,  159;  Dr.  &  Stud.  177  ;  Keilw.  78;  1  Pow.  Con.  330;  .5  I).  &  E.  143;  Elsee 
V.  Gatward."     The  learned  judge's  error  is  apparent  if  we  read  Watton  v.  Brinth. 

3  "  And  [this]  was  so  stated  in  the  declaration,  according  to  Croke's  report  of  the 
case ;  see  Cro.  Eliz.  883  ;  "  note  of  Mr.  Justice  Metcalf. 

14 


210  CASES   ox   COMMON-LAW   PLEADING. 

were  not  delivered,  the  plaintiff  brought  his  action  ut  supra  ;  and 
adjudged  iit  supra.  But  nota.,  the  judgment  was  reversed  in  the 
Exchequer,^  Mich.  44  and  45  Eliz.,  as  Hitcham  told  Yelverton. 


(1)   WHEATLEY   v.   LOW. 

In  the  King's  Bench.     1623. 

Reported  Croke's  James,  668. 

The  first  case  which  decided  that  a  bailee  might  be  charged  in  assumpsit 
on  a  gratuitous  bailment. 

Action  on  the  case.  Whereas  he  was  obliged  to  J.  S.  in  £40  for 
the  payment  of  £20  ;  and  the  bond  being  forfeited,  he  delivered  £10 
to  the  defendant,  to  the  intent  he  should  pay  it  to  J.  S.  in  part  of 
payment  sine  ulla  mora  ;  that  in  consider  a  Hone  inde  the  defendant 
assumed,  etc.,  and  assigns  for  breach,  that  he  had  not  paid ;  where- 
upon the  other  had  sued  him  for  this  debt,  etc. 

The  defendant  pleaded  non  assumjjsit  ;  and  verdict  for  the  plain- 
tiff. It  was  moved  in  arrest  of  judgment,  that  this  is  not  any 
consideration,  because  it  is  not  alleged,  that  he  delivered  it  to  the 
defendant  upon  his  request ;  and  the  acceptance  of  it  to  deliver  to 
another  sine  mora  cannot  be  any  benefit  to  the  defendant  to  charge 
him  with  this  promise. 

Sed  non  allocatur  ;  for,  being  that  he  accepted  this  money  to  de- 
liver, and  promised  to  deliver  it,  it  is  a  good  consideration  to  charge 
him.  Wherefore  it  was  adjudged  for  the  plaintiff.  A  writ  of  error 
being  brought,  and  this  matter  only  assigned  in  error,  the  judgment 
was  affirmed. 


Reported  Y.  B.  19  Hen.  VL  49,  pl.  5.    Axno  1441. 

[^xti-act.] 

(2)  [Y.,  a  surgeon,  undertook  to  cure  X.'s  horse,  but  treated  it  so 
negligently  that  it  died.]  Fer  Paston,  J.  "  You  have  not  shown 
that  he  is  a  common  surgeon  to  cure  such  horses,  and  so,  although 
he  killed  your  horse  by  his  medicines,  you  shall  have  no  action 
against  him  without  an  assumpsit." 

1  "  This  reversal  was  erroneous.  The  decision  in  the  King's  Bench  was  subse- 
quently recognized,  and  conforms  to  the  present  established  doctrine.  Cro.  Jac.  668  ; 
Wheatly  v.  Low,  Palm.  281 ;  s.  c.  Winch,  25  ;  Vanheath  v.  Turner,  per  Hobart,  C.  J. ; 
2  Ld.  Raym.  920,  Coggs  v.  Bernard ;  Jones  on  Bailments,  71  ;  1  Selw.  N.  P.  40,  n. ;  2 
Bay,  551,  Bolan  v.  Williamson  et  al.:"  note  by  Mr.  Justice  Metcalf. 


THE    PARENT   OF   CASE,   TROVER,   AND    ASSUMPSIT.  211 


DECEIT   AND   ASSUMPSIT. 

(b)    Early  Necessity  for  alleging  an  Undertaking  in  Actions  on 
False  Warranties. 

3.  Later,  case  for  deceit  was  allowed  against  the  vendor 
of  a  cliattel  who  warranted  it  falsely. 

("  The  words  suiter  se  assiimjjsit  were  not  used,  it  is  true, 
in  a  count  upon  a  warranty  ;  but  the  notion  of  undertaking 
was  equally  well  conveyed  by  hoarrentizando  vendidiV  " 
History  of  Assumpsit,  Ames,  2  Harv.  L.  Rev.  8.) 

4.  Case  for  deceit  lay  also  against  those  who,  like 
taverners  or  vintners,  were  bound  by  the  nature  of  their 
occupation  to  sell  articles  of  a  certain  quality. 


(3)   CHANDELOR  v.   LOPUS. 
In  the  Exchequer  Chamber.     1603. 
Reported  Croke's  James,  4. 
Warranty  distinguished  from  bare  affirmation. 

Action  upon  the  case.  Whereas  the  defendant,  being  a  goldsmith, 
and  having  skill  in  jewels  and  precious  stones,  had  a  stone  which  he 
affirmed  to  Lopus  to  be  a  bezar-stone,  and  sold  it  to  him  for  £100  ; 
ubi  revera  it  was  not  a  bezar-stone :  the  defendant  pleaded  not 
guilty,  and  verdict  was  given  and  judgment  entered  for  the  plaintiff 
in  the  King's  Bench. 

But  error  was  thereof  brought  in  the  Exchequer  Chamber,  be- 
cause the  declaration  contains  matter  not  sufficient  to  charge  the 
defendant,  viz.  that  he  warranted  it  to  be  a  bezar-stone,  or  that  he 
knew  that  it  was  not  a  bezar-stone  ;  for  it  may  be  he  himself  was 
ignorant  whether  it  were  a  bezar-stone  or  not. 

And  all  the  justices  and  barons  (except  Anderson)  held,  that  for 
thi=i  cause  it  was  error  :  for  the  bare  affirmation  that  it  was  a  bezar- 
stone,  without  warranting  it  to  be  so,  is  no  cause  of  action :  and  al- 
though he  knew  it  to  be  no  bezar-stone,  it  is  not  material ;  for  every 
one  in  selling  his  wares  will  affirm  that  his  wares  are  good,  or  the 
horse  which  he  sells  is  sound ;  yet  if  he  does  not  warrant  them  to 
be  so,  it  is  no  cause  of  action,  and  the  warranty  ought  to  be  made  at 
the  same  time  of  the  sale ;  as  F.  N.  B.  94  c,  and  98  b :  5  Hen. 
VII.  pi.  41 ;  9  Hen.  VI.  pi.  53  ;  12  Hen.  IV.  pi.  1 ;  42  Ass.  8;  7  Hen. 


212  CASES    ON    COMMON-LAW    PLEADING. 

IV.  pi.  15.     Wherefore  forasmuch  as  no  warranty  is  alleged,  they 
held  the  declaration  to  be  ill. 

Anderson  to  the  contrary  for  the  deceit  in  selling  it  for  a  bezar, 
whereas  it  was  not  so,  is  cause  of  action.  But  notwithstanding  it 
was  adjudged  to  be  no  cause,  and  the  judgment  was  reversed. 

(4)   ROSWELL   V.  VAUGHAN. 
Ix  THE  Exchequer  Chamber.     1607. 
Reported  Croke's  James,  196. 
Actions  of  deceit  for  false  warranties  of  title  considered. 

Action  on  the  case  in  the  nature  of  deceit.  Whereas  on  the  9th 
of  June,  35  Eliz.,  Queen  Elizabeth  was  seized  in  fee  of  the  advow- 
son  of  the  vicarage  of  Southstoke,  whereto  the  tithes  in  Southstoke 
appertained  ;  to  which  vicarage  the  defendant  on  the  9th  of  June, 
35  Eliz.,  afiirmed  that  he  was  lawful  incumbent,  and  had  a  right 
to  the  tithes  from  the  death  of  Thomas  Vaughan  the  incum- 
bent ;  whereupon  the  plaintiff,  16  June,  35  Eliz.,  having  communi- 
cation with  the  defendant  about  his  buying  of  the  defendant  the 
tithes  appertaining  to  the  said  vicarage,  after  the  death  of  the 
said  Thomas  Vaughan  (who  died  16  April,  35  Eliz.),  until  Michael- 
mas following ;  that  the  defendant,  ad  tunc  sciens  that  he  had  not 
any  right  or  interest  to  the  tithes,  whereas  he  was  never  instituted 
and  inducted,  but  that  they  appertained  to  Evan  Thomas,  sold  them 
to  the  plaintiff  for  £30, /also  et  deceptive,  and  allegeth  in  facto,  that 
Evan  Thomas  was  presented,  admitted,  instituted,  and  inducted  to 
that  vicarage  on  the  last  day  of  August,  35  Eliz.,  and  took  the 
tithes  and  so  the  plaintiff  lost  them. 

The  defendant  pleads  not  guilty  ;  and  foimd  against  him.  And 
it  was  now  moved  in  arrest  of  judgment  that  the  action  lay  not ;  for 
an  action  in  the  nature  of  deceit  lies  not  where  one  sells  a  thing 
which  he  hath  not  property  in  ;  and  although  he  took  upon  him  in 
discourse  that  he  was  owner,  and  had  right  to  sell,  unless  he  war- 
rants that  the  other  should  enjoy  it  accordingly  (which  warranty 
ought  to  be  at  the  time  of  the  sale),  it  is  not  good  ;  but  here  is  not 
any  waiTanty  nor  affirmance  at  the  time  of  the  sale,  that  he  had 
any  right  or  title  to  sell ;  for  his  affirmance  that  he  was  vicar,  and 
had  right  to  sell,  was  upon  the  9th  of  June,  and  the  sale  was  the 
16th  of  June,  after;  and  in  proof  hereof  he  relied  upon  5  Hen.  VII. 
pi.  41,  9  Hen.  VII.  pi.  21,  and  Chandelor  v.  Lopus,  Cro.  Jac.  4. 

Tanfield,  Chief  Baron,  and  Altham,  were  of  that  opinion.  But  if 
a  man  sell  victuals  which  are  corrupt,  without  warranty,  an  action 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSU'MPSIT.      213 

lies,  because  it  is  against  the  Commonwealth  ;  as  9  Hen,  YI.  pi.  53, 
7  Hen.  IV.  pi.  15,  and  11  Edw.  IV.  pi.  6.  And  although  the  Book 
of  Assize,  42  Ass.  pi.  8,  was  objected,  when  one  took  goods  from  an- 
other and  sold  them,  and  the  owner  retook  them,  that  an  action 
upon  the  case  was  brought  in  the  nature  of  deceit  for  this  falsity  in 
sale  without  any  warranty.  Tan  field  thereto  answered,  that  the  said 
book  is  not  adjudged,  but  the  party  admits  it,  and  takes  issue  ;  yet 
if  it  were  allowed  to  be  law,  it  is  because  he  there  had  possession 
by  tort,  and  so  had  color  in  show  to  be  owner ;  and  he  was  deceived 
by  buying  of  him  who  had  only  gained  a  tortious  possession  ;  and 
although  he  had  not  any  right,  yet  every  one  took  cognizance  of 
him  as  owner,  and  he  himself  knew  that  he  was  not  right  owner  ; 
which  is  the  reason  that  the  action  was  maintainable  :  but  here  he 
had  not  any  possession  ;  and  it  is  no  more  than  if  one  should  sell 
lands  wherein  another  is  in  possession,  or  a  horse  whereof  another 
is  possessed,  without  covenant  or  warranty  for  the  enjoyment,  it  is 
at  the  peril  of  him  who  buys,  and  not  reason  that  he  should  have 
an  action  by  the  law,  where  he  did  not  provide  for  himself.  Where- 
fore it  was  adjudged  for  the  defendant.^ 


BURNBY   V.  BOLLETT. 

Exchequer  of  Pleas.    1847. 

Reported  16  Meesov  &  Welsby,  644. 

The  law  implies  a  warranty  from  the  very  occupations  of  the  vendors  of 
certain  chattels. 

Case.  The  declaration  stated,  that  the  defendant,  on,  etc.,  at  Lin- 
coln, publicly  offered  for  sale  the  carcass  of  a  pig  for  the  food  of  man, 
and  thereby  then  and  there  falsely  and  fraudulently  undertook  and 
warranted  that  the  said  carcass  was  in  a  sound  and  wholesome  con- 
dition, and  fit  for  human  consumption,  whereby  the  plaintiff  was 
induced  to  buy  the  said  carcass  at  the  sum  of  £6  I85.  6d.,  whereas, 
in  truth  and  in  fact,  the  said  carcass  was  not  in  a  sound  and  whole- 
some condition,  and  fit  for  human  consumption,  but,  on  the  con- 
trary thereof,  was  unsound,  unwholesome,  etc.,  whereby,  etc. 

Plea,  not  guilty. 

At  the  trial,  before  Patteson,  J.,  at  the  last  summer  assizes  for 
Lincolnshire,  it  appeared  that  the  plaintiff  and  the  defendant  were 
farmers.     The  defendant  had  bought  the  carcass  of  the  pig  in  ques- 

^  "  To-day  a  warranty  of  title  is  commonly  implied  from  the  mere  fact  of  selling." 
Ames,  History  of  Assumpsit,  2  Harv.  L.  Rev.  10;  Eicholtz  v.  Bannister,  17  C.  B. 
N.  8.  708. 


214  CASES    ON    COMMON-LAAV    PLEADING. 

tion  at  the  stall  of  one  Penrose,  a  butcher,  in  the  public  shambles 
in  Lincoln  market ;  but,  having  other  business  in  the  town,  left  it 
hanging  up  at  the  seller's  stall,  till  it  was  more  convenient  to  take 
it  away  with  him.  Before  he  returned,  the  plaintiff  came  to  the 
same  stall,  and  seeing  the  pig,  offered  to  buy  it.  The  stall-keeper 
told  him  that  it  w^as  the  property  of  the  defendant,  who  had  bought 
it,  but  added  that  he  might  perhaps  part  with  his  bargain  for  a 
small  proht.  The  plaintiff  then  went  to  seek  out  the  defendant, 
and  having  met  with  him  in  the  market,  dealt  with  him  for  the 
pig,  and  bought  it  of  him.  It  was  forthwith  conveyed  to  the  plain- 
tiff's house.  Next  day  the  meat  was  found  to  be  diseased  and  quite 
rotten,  so  as  to  be  wholly  unfit  for  human  food.^  Thereupon  the 
plaintiff  brought  this  action  to  recover  back  the  purchase-money, 
by  way  of  damages  for  the  breach  of  an  implied  warranty  of  sound- 
ness. The  defence  was,  caveat  emptor.  Upon  these  facts,  Patteson, 
J.,  inclined  to  think  that  the  law  implied  such  a  warranty  on  the 
part  of  the  defendant  as  was  alleged  in  the  declaration,  and  directed 
the  jury  accordingly.  Verdict  for  the  plaintiff  for  £6  18s.  6t?.,  sub- 
ject to  a  motion  to  enter  a  nonsuit.  A  rule  nisi  having  been  after- 
wards obtained  accordingly, 

Humfrey  and  J.  Hildyard  showed  cause  at  the  sittings  after  Hil- 
ary Term.  The  plaintiff  was  entitled  to  bring  this  action  ;  for,  on 
a  sale  of  meat  for  the  use  of  man,  a  warranty  of  soundness  and  fit- 
ness for  human  consumption  is  implied  by  law.  [Parke,  B.  The 
jury  have  negatived  fraud.  The  question  then  is,  w^hether  any  and 
every  man  who  sells  provisions  in  a  market  must  be  taken  to  sell 
them  with  an  implied  warranty  of  soundness.]  It  was  immaterial 
whether  the  defendant  knew  it  was  unsound  and  unwholesome 
meat  or  not,  and  it  is  a  public  and  indictable  offence,  for  which  he 
may  be  punished.  [Alderson,  B.  The  defendant  sold  a  pig  which 
had  been  exposed  for  sale,  not  by  him,  but  by  one  Penrose.  Parke, 
B.  The  authority  in  Keilway,  91,  may  authorize  an  action  against 
Penrose.  Alderson,  B.  There  is  no  evidence  that  the  defendant's 
suffering  the  meat  to  be  in  the  place  where  the  plaintiff  saw  it  was 
with  the  object  of  selling  it.  Nor  is  it  found  that  he  bought  it  for 
sale.  Parke,  B.  Here  was  no  public  exposure  for  sale,  except  by 
Penrose.  The  defendant  was  not  a  dealer  in  meat.  There  was  no 
express  warranty,  and  no  fraud.  The  plaintiff  has  to  make  out 
that  a  naked  sale  of  an  article  which  is  to  be  eaten,  and  proves 
unfit  for  it,  is  actionable.]  Still  the  law  implies  a  warranty ;  for, 
however  the  defendant   became  possessed  of  it,  as  he  afterwards 

1  It  was  sworn  that,  throughout  the  neighborhood,  the  season  had  proved  unac- 
countably injurious  to  meat. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      215 

sold  it,  he  was  bound,  before  so  selling  it,  to  ascertain  that  it  was 
fit  for  food.  That  is  founded  on  the  necessity  of  preventing  injury 
to  the  public.  In  Keilway's  Rep.  91  (22  Hen.  YII.),^  Frowicke  said, 
that  "no  man  can  justify  selling  corrupt  victual,  but  an  action  on 
the  case  lies  against  the  seller,  whether  the  victual  was  warranted  to 
be  good  or  not.  But  if  a  man  sells  me  cloth  or  other  thing,  know- 
ing the  cloth  to  be  bad,  there  I  am  deceived  'person  notice  demesne; ' 
and  in  that  case,  because  '  quod  ipse  fuit  sciens,'  though  he  sold  it 
without  warranty,  still  he  shall  be  punished  by  writ  on  the  case. 
But  if  he  did  not  know  it,  he  shall  not  be  punished,  unless  he  has 
warranted  the  article  to  be  good."  The  case  then  proceeds  to  allude 
to  the  Year  Book,  9  Hen.  VI.  oS,^  in  which  case  Babington  (appar- 
ently a  judge)  said,  that  warranty  of  soundness  by  a  seller  of  provi- 
sions was  unnecessary,  adding  that,  if  a  man  goes  into  a  tavern  for 
refreshment,  and  corrupt  drink  or  meat  is  there  sold  to  him,  which 
occasions  his  sickness,  an  action  clearly  lies  against  the  tavern- 
keeper.  That  case  is  thus  stated  in  1  Eoll.  Abr.,  tit.  Action  sur 
Case  (P.),  pi.  1  &  2  —  "If  a  taverner  sells  wine  (knowing  it  to  be 
corrupt)  to  another  as  sound,  good,  and  not  corrupt,  without  any 
express  warranty,  still  an  action  of  deceit  lies  against  him,  for  there 
was  a  warranty  in  law.  So,  if  I  come  into  a  tavern  to  eat,  and  the 
taverner  gives  and  sells  me  'bier  et  char  cori^upt^  'per  que  jeo  suis 
mis  en  grand  infirmitie^  an  action  lies  against  him  without  express 
warranty,  for  it  is  a  warranty  in  law."  It  is  again  stated  thus,  by 
Tanfield,  G.  B.,  and  Altham,  B.,  in  Roswell  v.  Vaughan,  Cro.  Jac. 
196:  "If  a  man  sells  victual  which  is  corrupt,  without  warranty, 

1  See  the  ciises  collected,  1  Vin.  Abr.  561. 

2  "  Brief  de  deceit  sur  le  cas  quare  cum,  etc.,  fuit  port  ])er  A.  as^ainst  B.  &  C.  .  .  . 
quare  cum  prsedict'  A.  quandam  buttam  viui  de  Rumiiey  de  praefat'  B.  &  C,  prtedict' 
C.  sciens  illam  esse  corruptam  et  inliabilem,  warrantiz'  esse  habilem  et  non  corruptam, 
p*  quadam  pecuniie  summa  vendidit.  .  .  .  Kolf  (for  defendant)  prayed  judi^iiient  of 
the  writ,  for  it  is  not  stated  that  we  warranted  it  to  be  good,  and  tiien  it  sliall  be 
adjudi^ed  the  plaintiff's  own.  folly.  Martin  (as  it  seems  for  plaintiff).  The  war- 
ranty is  not  material  (n'e  a  purpos) ;  for  it  is  enacted  (ordeiue)  that  no  one  shall  sell 
corrupt  victual  [[see  post,  p.  648]-  Cottismore  (apparently  a  judge).  Ceo  est  actio 
popularis.  Babington  (apparently  a  judge).  The  warranty,  as  Martin  has  said,  is 
not  material  (n'e.  pas  a  purpos)  ;  car  si  jeo  vien  en  un  taverne  a  manger,  et  il  don'  et 
vend'  a  moy  bier  ou  char  corrupt',  par  le  quel  jeo  suis  mis  en  grand  infirinite,  j'aurai 
action  envers  luy  sur  mon  cas  clerement,  et  nncore  il  ne  fist  garranty  a  moy. 
Godred.  It  was  lately  adjudged  in  the  King's  Bench  that  if  a  man  sells  a  piece  of 
woollen  cloth,  knowing  it  to  be  rotten  and  ill  fulled,  '  et  ceo  fuit  adjudge  bon  sans 
garranty.'  And  then  West  said  that  the  wool  was  warranted,  and  so  it  was.  Rolf, 
ridendo  et  protestando,  that  the  plaintiff  was  a  wine  drawer,  and  yet  knew  nothing  of 
wines,  said  for  plea  for  B.,  that  at  the  time  of  selling  the  wine,  it  was  sufficient  and 
fit  or  sound  (suffic'  et  able).  The  court  held  that  the  plaint  should  be  traver.sed ; 
upon  which  he  added,  'and  not  corrupt.'  C.'s  plea  was,  that  he  sold  to  plaintiff  as 
B.'s  servant,  and  in  no  other  manner.  Martin.  You  have  deceived  the  plaintiff  to 
your  own  knowledge  (^de  vre'  couis'  demen')." 


216  CASKS    ON    COMMON-LAW    TLEADING. 

an  action  lies,  because  it  is  against  the  Commonwealth ;  as  9  Hen. 
VI.  53,  7  Hen.  IV.  15,i  and  11  Edvv.  IV.  6."  The  cases  are  col- 
lected in  1  Viner's  Abridgment,  520.  [Parke,  B.  Suppose  that  I, 
not  being  a  seller  of  wine,  import  a  pipe  from  Oporto,  and  on  its 
arrival  at  the  docks  transfer  it  to  you  for  a  price,  without  seeing  or 
tasting  it,  shall  I  be  liable  to  an  action  if  it  proves  bad  ?]  The  sale 
alone  would  impose  that  liability.  [Alderson,  B.  There  must  be  a 
difl'erence  between  exposing  food  or  wine  for  sale,  and  transferring 
a  bargain  in  it.  The  case  put  in  the  Year  Book  of  Hen.  VI.  is 
that  of  a  general  dealer,  who,  as  such,  may  be  bound  at  law  to 
know  the  quality  of  the  article  he  sells.  Parke,  B.  You  must 
contend  that  even  if  the  seller  is  not  a  dealer  in  provisions,  or  does 
not  warrant  them,  or  is  not  guilty  of  any  fraud,  or  has  no  knowl- 
edge of  the  particular  article,  he  is  liable  if  it  be  not  sound, 
whether  the  buyer  suffers  illness  in  consequence  or  not.  The  case 
in  the  Year  Book,  9  Hen.  A^I.,  on  which  that  in  Keilway  seems  to 
rest,  is  one  of  a  taverner.  Alderson,  B.  The  Year  Book,  11  Edw. 
IV.  6,  lays  down  a  general  prohibition  by  law^  to  sell  corrupt 
victual.^  Whether  the  bad  wine  or  food  is  sold  by  a  general  dealer 
in  either,  or  not,  the  injury  to  the  public  from  selling  them  is  the 
same.  Eolfe,  B.  The  case  in  Croke  James  explains  those  in  the 
Year  Books,  as  turning  on  the  scienter  in  the  seller,  or  on  the  pecu- 
liar duty  of  a  taverner.]  The  scienter  is  immaterial.  On  the  same 
grounds  of  public  danger,  a  servant's  carrying  a  child  afflicted  with 
the  small-pox  along  a  public  highway  in  which  persons  are  pass- 
ing, and  near  inhabited  houses,  is  indictable.  Eex  v.  Vantandillo, 
4  M.  &  Sel.  73  ;  1  Eussell  on  Crimes,  by  Greaves,  108.  Kitchen 
on  Courts  Leet,  21,  pi.  29,  shows  that  a  selling  by  butchers,  fish- 
mongers, and  other  victuallers,  of  any  corrupt  victual,  not  whole- 
some for  men's  bodies,  was  inquirable  in  the  leet.  Blackstone,  in 
his  Commentaries,  Vol.  III.  p.  166,  says,  "  In  contracts  for  provi- 
sions, it  is  always  implied  that  they  are  wholesome ;  and  if  they  be 
not,  the  same  remedy  (viz.  by  action  on  the  case  to  exact  damages 
for  the  deceit)  lies  against  him."     Gray  v.  Cox,  4  B.  &  C.  108,  E. 

1  This  seems  a  mistaken  reference  to  the  Year  Book. 

2  This  seems  to  allude  to  Stat.  Incert.  Temp.,  c.  7,  1  Tomlins,  Statutes  at  Large, 
8vo,  388;  see  also  the  Statute  of  Pillory  and  Tumbrel,  .'Jl  Hen.  IIL  c.  G,  s  3. 

3  Year  Book,  Trin.  1 1  Edw.  IV.  6  B.  Brian  said,  "  Car  si  jeo  vende  a  un  homme  xx 
berbits  per  tuer,  s'ils  sonts  corrupts,  uncore  si  jeo  garrante'  eux,  il  n'avera  ace'  de 
disceit  sur  le  garrantie,  et  ne  sera  travers,  car  qfit  ils  sont  morts  jeo  ne  puisse  conustre 
q'ils  sont  corruptes,  qnt  jeo  done  trust  et  confidence  a  vous,  si  jeo  suis  disceive,  jeo 
aver'  ace'  de  disceit,  &c.,  mes  si  jeo  vende  mutton  pur  manger  quel  est  corrupt,  il  aver' 
ace'  de  disceit,  comt.  jeo  ne  garr'  cell'." 

Nele.  —  En  vostre  case  le  cause  est  "  p  c  q  il  est  prohibite  per  le  ley  q'  home  vende 
vitaile  corrupted,"  &c.     See  statute  51  Hen.  III.  c.  6,  s.  3,  anno  1266-1267. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.       217 

C.  L.  E.,  Vol.  X.,  shows  that  the  seller  of  an  article  undertakes  that 
it  shall  be  reasonably  fit  for  the  use  for  which  it  is  intended. 
[Parke,  B.  That  is  confined  to  cases  where  he  undertakes  to  manu- 
facture it.^]  Whatever  a  man  does  to  the  article  to  vary  it  from 
its  natural  state  is  sufficient,  e.  g.  cutting  up  or  skinning  an  animal. 
[Parke,  B.  The  sole  point  for  consideration  is,  whether  an  ordi- 
nary individual,  not  clothed  with  any  character  of  general  dealer 
in  provisions,  who  bo7id  fide  sells  meat  for  human  consumption,  is 
liable  to  an  action  on  the  case  by  the  buyer  of  the  article  if  it 
proves  unsound.  This  is  not  the  case  of  a  butcher,  or  taverner,  or 
farmer  killing  or  exposing  to  sale  meat  in  open  market,  who  may 
be  reasonably  taken  as  impliedly  warranting  the  meat  to  be  sound. 
Would  an  indictment  lie  against  an  ordinary  individual  for  so  do- 
ing ?]  On  principle  there  is  no  distinction  between  such  an  indi- 
vidual and  any  such  trader,  and  both  ought  to  be  alike  liable ;  for 
the  sale  of  unsound  meat  is  in  itself  illegal. 

Whitehurst  and  Miller,  in  support  of  the  rule.  If  a  contract  for 
sale  of  unsound  meat  is  expressly  forbidden  by  law,  it  is  void,  and 
no  warranty  can  be  implied  by  law  to  attach  to  it.  Nor  is  there 
any  distinct  authority  to  prove  what  the  plaintiff  contends  for ; 
whereas  it  is  clear  law  that  where  a  man  buys  a  specific  article,  no 
warranty  arises,  for  the  maxim  of  caveat  emjjtor  applies.  Chanter  v. 
Hopkins,  4  M.  &  W.  399.  That  applies  to  sales  of  food  as  well 
as  of  other  chattels.  If,  on  the  contrary,  a  man  orders  an  article  to 
be  made  for  a  particular  purpose,  the  party  who  undertakes  to 
supply  it  is  bound  to  furnish  one  fit  for  that  purpose.  Shepherd 
V.  Pybus,  3  M.  &  Gr.  868  ;  E.  C.  L.  R.  Vol.  XLII. ;  4  Scott,  434.2  In 
Chanter  v.  Hopkins,  Lord  Abinger  said,  "  A  warranty  is  an  express 
or  implied  statement  of  something  which  the  party  undertakes  shall 
be  a  part  of  a  contract,  and,  though  part  of  the  contract,  yet  collat- 
eral to  the  express  object  of  it.  But  in  many  of  the  cases,  the  cir- 
cumstance of  a  party  selling  the  thing  by  its  proper  description  has 
been  called  a  warranty,  and  the  breach  of  such  contract  a  breach  of 
warranty ;  but  it  would  be  better  to  distinguish  such  cases,  as  a 
non-compliance  with  a  contract  which  a  party  has  engaged  to  ful- 
fil." [Parke,  B.,  referred  to  the  note  to  Cutter  v.  Powell,  6  T.  R. 
323,  in  Smith's  Leading  Cases,  Vol.  II.]  Parkinson  v.  Lee,  2  East, 
314,  settles,  that  where  a  buyer  has  an  opportunity  of  seeing  part 
of  the  thing  sold,  no  warranty  is  implied  by  law.  Then  do  the  old 
cases  establish  such  a  difference  in  the  instance  of  selling  unwhole- 

1  See  2  M.  &  Gr.  279  (40  E.  C.  L.  R.) ;  4  M.  &  W.  402 ;  2  B.  &  Adol.  456  (22  E. 
C.  L.  R.)  ;  5  Bing.  53.3  (15  E.  C.  L.  R.). 

2  See  Brown  v.  Edgington,  2  M.  &  Gr.  279  (40  E.  C.  L.  R.). 


218  CASES    ON   COMMON-LAW    PLEADING. 

some  provisions  for  human  food  that  a  party  is  liable  to  an  action 
for  selling  them,  without  knowing  them  to  be  untit  for  food,  or 
warranting  them  to  be  fit  ?     Is  every  isolated  act  of  selling  such  a 
dealing  as  makes  the  seller  liable  in  case  of  the  article  proving  bad  ? 
The  strongest  case  in  the  affirmative  is  in  the  Year  Book,  11  Edw. 
IV.  6  B.,  ante,  p.  648,  n.c.     It  was  one  of  the  judges  who  there  said 
that   the   sale  of   corrupt  victual  was  prohibited  hj  law.     It  was 
there  said,  that  if  I  sell  a  man  twenty  sheep  to  kill  (which  must 
mean  for  food),  if  they  are  rotten  no  action  lies,  because  till  killed 
no  one  can  tell  whether  they  are  rotten  or  not ;  nor  would  the  man 
who  sells  to  kill  have  them  in  his  possession,  so  as  to  know  their 
state  when  dead.     It  would  then  be  sufficient  in  the  declaration  to 
state  a  sale  of  food  not  being  fit  for  the  food  of  man.     At  the  trial, 
the  learned  judge  said  there  was  a  warranty  in  law,  and  left  it  to 
the  jury  only  whether  the  pig  was  imwholesome  when  left  at  Pen- 
rose's stall,  without  asking  them  whether  it  was  sold  for  use  of  man 
or  not.     [Parke,  B.    It  was  assumed  throughout  that  it  was.     The 
simple  point  is,  whether  the  bare  allegation  that  the  defendant  sold 
not  exposed  to  sale  to  the  plaintiff,  for  the  food  of  man,  corrupt  and 
unsound  victuals,  he  not  being  a  dealer  in  them,  or  proved  to  know 
them  to  be  unsound,  is  sufficient  to  entitle  the  plaintiff  to  maintain 
an  action   for  deceit.]     Comyns,  in  his  Digest,  tit.  Action  on  the 
Case  for  Deceit  (E.  4),  cites  Kitchen,  174,  to  show  that  if  a  buyer  of 
a  horse  has  opportunity  of  discovering  a  (patent)  defect  in  him  by 
inspection,  and  does  not,  no  action  lies ;  ^  adding, "  so,  if  a  man  sell 
corrupted  wine  if  the  vendee  or  his  servant  taste  and  approve  of  it." 
The  case  of  a  taverner  is  one  where  the  article  of  food  furnished  to 
the  guest  is  not  selected  by  him  in  the  first  instance.     So,  if  I 
order  meat  generally  of  a  butcher,  without  selection,  the  implied 
contract  is  that  the  meat  shall  be  good.    [Parke,  B.    That  is  not  the 
case  of  ordering  a  particular  piece  of  meat  to  be  sent  home.     The 
question  in  the  taverner' s  case  is,  whether  as  such  he  was  bound 
to  supply  sufficiently  good  meat,  —  resembling  Shepherd  v.  Pybus, 
3  M.  &  Gr.  868,  E.  C.  L.  R.  Vol.  XLII. ;  4  Scott,  434.     Alderson, 
B.   Fitzherbert,  in  his  Natura  Brevium,  94  B.,  says,  that  if  a  man 
sells  corrupt  wine,  or  an  unsound  horse,  without  warranty,  it  is  at 
the  buyer's  peril,  "  and  his  eyes  and  taste  ought  to  be  his  judges  in 
that  case."     The  Year  Books  already  mentioned  are  there  cited.] 
All  the  cases  collected  in  1  Vin.  Abr.  560,  show  that  the  liability 
of  the  seller  turns  on  the  scienter.     As  to  the  passage  cited  from  3 
Bla.  Com.  165,  that  in  contracts  for  provisions  it  is  always  implied 
that  they  are  wholesome,  and  if  they  are  not,  an  action  lies  for 

1  See  2  Roll.  R.  5 ;  Southern  v.  How. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      219 

deceit,  it  admits  of  the  same  solution,  viz.  that  if  the  contract  be 
for  provisions  which  are  not  seen,  e.  g.  for  shipping,  a  warranty  of 
their  being  good  and  fit  for  that  particular  purpose  is  implied; 
whereas,  if  the  contract  was  for  a  specific  article  of  food  brought 
before  the  eyes  of  the  purchaser,  it  would  not.  All  turns  on  the 
seller's  knowledge,  actual  or  presumed,  of  the  condition  of  the  food. 
It  is  presumed  in  the  case  of  the  taverner  or  butcher,  as  in  the 
case  of  a  jeweller  who  sold  a  pebble  for  a  bezoar  stone.  The  liabil- 
ity of  such  persons  arises  from  the  opportunity  they  have  in  deal- 
ing with  the  article,  of  knowing  whether  it  is  good  or  not.  Here, 
between  ordinary  parties,  no  knowledge  that  the  animal  was  cor- 
rupt can  be  presumed  from  their  dealings.  [Parke,  B.  It  is  put 
for  the  plaintiff,  whether,  by  reason  of  food  being  the  subject  of 
sale,  this  is  not  an  exception  to  the  general  rule,  so  as  to  make  the 
seller  responsible  on  account  of  the  common  good,  though  no  care 
could  have  discovered  the  latent  defect.^  If  the  only  obligation 
here  was  to  use  due  diligence  to  see  that  it  was  not  corrupt,  the 
plaintiff  cannot  succeed.]  Without  express  warranty,  or  knowledge 
express  or  presumed  of  the  latent  unsoundness,  the  defendant  can- 
not be  liable.  Now  it  was  admitted  that  the  defendant  knew  no 
more  of  the  real  condition  of  the  carcass  in  question  than  the  plain- 
tiff himself. 

Cur.  adv.  vult. 

Parke,  B.,  now  delivered  the  judgment  of  the  court.  This  was 
an  action  on  the  case,  alleging  that  the  defendant  had  publicly 
offered  the  carcass  of  a  pig  for  sale  and  for  the  food  of  man,  and 
had  falsely  and  fraudulently  warranted  it  to  be  wholesome  and  fit 
for  food,  whereby  and  by  reason  whereof  the  plaintiff  was  induced 
to  buy  it,  and  pay  to  the  defendant  a  certain  price  for  it.  At  the 
trial,  before  my  brother  Patteson,  at  the  last  assizes  for  the  city  of 
Lincoln,  it  appeared  that  the  carcass  in  question  was  exposed  for 
sale  in  a  public  street  in  the  city  of  Lincoln,  on  the  shambles  of  one 
Penrose,  a  butcher,  and  that  the  defendant  bought  it  from  him,  but 
did  not  take  it  away.  The  plaintiff  afterwards  applied  to  Penrose 
to  purchase  the  same  carcass,  and,  l^eiug  referred  to  the  defendant 
as  the  person  who  had  already  bought  it,  he  applied  to  him,  and 
ultimately  bought  it  from  him,  and  paid  the  price  agreed  upon 
between  tbem.  It  turned  out,  however,  that  the  carcass  was  measly, 
and,  having  become  putrid  afterwards,  was  unfit  for  food,  where- 
upon the  plaintiff  applied  to  the  defendant  to  repay  the  price  to 
him,  and  brought  this  action  on  the  refusal  of  the  defendant  to 

1  See  Jones  v.  Bright,  5  Bing.  533  (15  E.  C.  L.  R.)  cited  2  Steph.  Coram.  127. 


220  CASES    ON    COMMON-LAW   PLEADING. 

comply  with  such  request.  It  did  not  appear  that  the  defendant 
liad  any  knowledge  of  tlie  unsound  condition  of  the  pig,  but  it  did 
appear  that  he  was  not  a  professed  buyer  and  seller  of  meat ;  that 
he  had  not  exposed  this  carcass  publicly  for  sale ;  that,  having 
bought  it  for  his  own  use,  he  had  left  it  with  Penrose  till  it  should 
be  delivered  to  himself,  and  that  there  was  a  reasonable  presump- 
tion that  he  knew  it  was  intended  for  human  food  when  he  sold  it 
to  the  plaintiff.  On  this  state  of  things,  the  counsel  for  the  defend- 
ant, Mr.  Whitehurst,  prayed  for  a  nonsuit,  but  the  learned  judge 
permitted  the  case  to  proceed,  reserving  the  point  on  the  nonsuit. 
The  verdict  passed  for  the  plaintiff,  and  a  rule  nisi  for  a  nonsuit 
having  been  obtained,  the  case  was  fully  argued  during  the  sittings 
after  the  last  term.  On  the  part  of  the  plaintiff  the  argument  was, 
that  the  sale  of  victuals  to  be  used  for  man's  consumption  differed 
from  the  sale  of  other  commodities,  and  that  the  vendor  of  such, 
without  fraud,  would  be  liable  to  the  vendee  on  an  implied  war- 
ranty. This  position  is  apparently  laid  down  in  Keilvvay,  91 ;  but 
the  authorities  there  referred  to,  in  the  Year  Books,  9  Hen.  VI.  53 
B.,  and  11  Edw.  IV.  6  B.,  and  others,^  when  well  considered,  lead 
rather  to  the  conclusion  that  there  is  no  other  difference  between 
the  sale  of  food  for  man  and  other  articles  than  this,  viz.  that  vict- 
uallers and  common  dealers  in  victuals  are  not  merely  in  the  situa- 
tion of  common  dealers  in  other  commodities,  nor  are  they  liable 
vinder  the  same  circumstances  as  they  are,  as,  if  an  order  be  sent  to 
them  to  be  executed,  they  are  to  be  presumed  to  undertake  the 
supply  of  food  and  wholesome  meat;  and  they  are  likewise  punish- 
able as  a  common  nuisance  for  selling  corrupt  meat,  by  virtue  of  an 
ancient  statute,  and  this  certainly  if  they  know  the  fact,  and  prob- 
ably also  if  they  do  not.  Such  persons  are  therefore  civilly  respon- 
sible to  those  customers  to  whom  they  sell  such  victuals,  for  any 
special  particular  injury  by  the  breach  of  the  law  which  is  thereby 
committed.  Lord  Coke  lays  it  down  that  all  persons,  as  well  as 
common  dealers,  are  liable  criminally  for  selling  corrupt  meat ;  for 
he  says,2  speaking  of  the  court  leet :  "  This  court  may  inquire  of 
corrupt  victuals  as  a  common  nuisance,  whereof  some  have  doubted, 
both  for  that  it  is  omitted  in  the  statute  of  the  leet,  and  of  the 
weak  authority  of  the  book  of  the  9  Hen.  VI.,^  where  Martyn  saith 
that  it  is  ordained  that  none  shall  sell  corrupt  victuals ;  and  Cot- 
tismore  held  opinion  that  it  is  actio  popularis,  whereupon  it  is  col- 
lected that  the  conusance  thereof  belongeth  to  the  leet;  and 
Martyn  and  Neal,  11  Hen.  IV.,  agreeing  with  him,  said  truly;  for, 

1  7  Hen.  IV.  15,  16;  11  Hen.  IV.  14,  15;  11  Hen.  VL  18. 

2  4  Inst.  261.  3  Viz.  53  B. 


THE  PARENT  OF  CASE,  TROVEE,  AND  ASSUMPSIT.       221 

by  the  statute  51  Hen.  III.  and  by  the  statute  made  in  the  reign 
of  Edw.  I.  it  is  ordained  that  none  shall  sell  corrupt  victuals ;  and 
the  statute  51  Hen.  III.  says  that  the  pillory  and  tumbril,  and 
assize  of  bread  and  ale,  applies  only  to  vintners,  brewers,  butchers, 
and  victuallers  ;  and,  among  the  other  things,  inquiry  is  to  be  made 
of  the  vintners'  names,  and  if  they  sell  a  gallon  of  wine,  or  if  any 
corrupted  wine  be  in  the  town,  or  such  is  not  wholesome  for  man's 
body  ;  and  if  any  butcher  sell  contagious  flesh,  or  that  died  of  the 
murrain,  or  cooks  that  see  the  unwholesome  flesh."  Lord  Coke 
then  goes  on  to  say  that  "  Britton,  who  wrote  after  the  statute  51 
Hen.  III.  and  following  the  same,  saith,  '  Puis  soit  enquys  de  ceux 
que  achatent  per  un  manere  de  mesure  et  vendent  per  meinder 
mesure  faux,  et  ceux  soient  punis  comes  vendours  de  vines,  et  aussi 
ceux  que  serront  attaintz  de  faux  aunes  et  faux  peys,  et  auxi  de 
maoegrieves,^  et  les  gents  que  de  usage  vendent  a  trespassants 
mauveyse  vians  corrumpus  et  nacrus  et  autrement  perillous  a  la 
saunty  de  home.'  '  Et,'  fol.  33,  he  doth  conclude  the  like  passage 
with  these  words  :  '  encontre  le  fourme  de  nous  statutes.' " 

This  view  of  the  case  explains  what  is  said  in  the  Year  Book,  9 
Hen.  VI.  53,  that  "  the  warranty  is  not  to  the  purpose ;  for  it  is  or- 
dained that  none  shall  sell  corrupt  victuals ; "  and  in  Eoswell  v. 
Vaughan,  Cro.  Jac.  196,  where  Tanfield,  C.  B.,  and  Altham,  B.,  say, 
"  that  if  a  man  sells  victuals  which  is  corrupt  without  warranty, 
an  action  lies,  because  it  is  against  the  commonwealth."  That  also 
explains  the  note  of  Lord  Hale,  in  1  Fitzherbert's  Natura  Brevium, 
94,  that  there  is  diversity  between  selling  corrupt  wines  and  mer- 
chandise ;  for  there  an  action  on  the  case  does  not  lie  without  war- 
ranty; otherwise,  if  it  be  for  a  taverner  or  victualler,  if  it  prejudice 
any.  The  defendant  in  this  case  was  not  dealing  in  the  way  of  a 
common  trader,  and  was  not  punishable  by  indictment  for  what  he 
did ;  he  merely  transferred  his  bargain  to  the  plaintiff,  and  at  his 
own  request.  He  therefore  falls  within  the  reason  of  the  former 
part  of  Lord  Hale's  distinction ;  and  there  being  no  evidence  of  a 
warranty,  or  of  any  fraud,  he  is  not  liable.  The  plaintiff  ought, 
therefore,  to  have  been  nonsuited  at  the  trial,  and  this  rule  must 
be  made  absolute.  Rule  absolute. 

Later,  actions  on  the  case  for  deceit  were  allowed  for  the 
simple  breach  of  a  parol  promise. 

(a)  First  it  was  held  no  such  action  lay,  because  the 
plaintiff  counted  on  a  promise  and  showed  no 
specialty. 

1  Macellarius,  butcher  or  victualler. 


222  CASES    ON    COMMON-LAW    PLEADING. 

(h)  Later,  in  the  fifteenth  century,  it  was  held  the 
action  lay  when  the  defendant  had  led  the 
plaintiff  to  part  with  money  or  property  on 
the  strength  of  the  defendant's  promise. 

(c)  Later,  it  was  held  that  the  action  might  be  brought 
when  the  plaintiff  had  incurred  any  detriment 
by  acting  on  the  defendant's  promise. 

(5  a)   WATTON    v.  BRINTH. 

Reported  Y.  B.  2  Henry  IV.  3,  pl.  9.     Anno  1400. 

One  Lawrence  Watton  brought  a  writ  formed  on  special  matter 
against  Thomas  Brinth,  and  the  writ  was  of  a  plea,  etc.  Where- 
fore since  the  same  T.  had  undertaken  within  a  certain  time  to  re- 
build well  and  faithfully  certain  houses  of  this  same  Lawrence  at 
Grimesby,  yet  the  aforesaid  T.  did  not  take  care  to  rebuild  the 
houses  of  this  same  L.  within  the  aforesaid  time,  etc.,  to  the  dam- 
age of  this  Lawrence  [in  the  sum  of]  ten  pounds,  etc.  And  de- 
clares accordingly.  Tirwit.  Sir,  you  see  well  how  he  has  counted  of 
a  covenant,  and  shows  nothing  for  it,  judgment,  etc.  Gas.  And 
for  as  much  as  you  answer  nothing,  we  demand  judgment,  and 
pray  our  damages.  Tir.  This  is  merely  a  covenant.  Bryn.  The  truth 
of  the  matter  is  this  ;  if  peradventure  he  had  counted,  etc.,  or  if  in 
the  writ  mention  had  been  made  that  the  thing  had  been  begun,  and 
[that]  afterwards  through  negligence  nothing  more  [was]  done,  it 
had  been  otherwise.  Hank.  He  might  have  brought  a  writ  on  the 
statute  of  laborers,  for  that  the  carpenter  is  an  artificer,  by  which 
you  may  have  a  good  action  against  him  on  the  statute  ;  for  you 
know  well  that  a  man  may  not  have  an  action  of  covenant  against 
his  servant  if  he  breaks  his  covenant,  if  he  hath  not  a  deed  of  it. 
Eikhill.  For  that  you  have  counted  of  a  covenant,  and  show  noth- 
ing for  that,  you  shall  take  nothing  by  your  writ,  but  be  in  mercy 
T.  2  Hen.  V.  fol.  M. ;  11  Hen.  IV.  4,  fol.  33. 

(5  h)  Per  Frowyk,  C.  J.  "  And  so,  if  I  sell  you  ten  acres  of  land, 
parcel  of  my  manor,  and  then  make  a  feoffment  of  my  manor,  you 
shall  have  an  action  on  the  case  against  me,  because  1  received  your 
money,  and  in  that  case  you  have  no  other  remedy  against  me.  And 
so,  if  I  sell  you  my  land,  and  covenant  to  enfeoff  you  and  do  not, 
you  shall  have  a  good  action  on  the  case,  and  this  is  adjudged.  .  .  . 
And  if  I  covenant  with  a  carpenter,  to  build  a  house  and  pay  him 
£20  for  the  house  to  be  built  by  a  certain  day,  now  I  shall  have  a 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      223 

good  action  on  my  case  because  of  payment  of  money,  and  still  it 
sounds  only  in  covenant  and  without  payment  of  money  in  this 
case  no  remedy,  and  still  if  he  builds  it  and  misbuilds,  action  on  the 
case  lies.  And  also  for  nonfeasance,  if  money  paid,  case  lies." 
Keilway,  77,  pi.  25.     [Anno  1504]  i 

(5  f)  "  The  gist  of  the  action  being  the  deceit  in  breaking  a 
promise  on  the  faith  of  which  the  plaintiff  had  been  induced  to  part 
with  his  money  or  other  property,  it  was  obviously  immaterial 
whether  tliQ  promisor  or  a  third  person  got  the  benefit  of  what  the 
plaintiff  gave  up.  It  was  accordingly  decided,  in  1520,  that  one 
who  sold  goods  to  a  third  person  on  the  faith  of  the  defendant's 
promise  that  the  price  should  be  paid,  might  have  an  action  on  the 
case  upon  the  promise.  This  decision  introduced  the  whole  law  of 
parol  guaranty.  Cases  in  which  the  plaintiff  gave  his  time  or  his 
labor  were  as  much  within  the  principle  of  the  new  action  as  those 
in  which  he  parted  with  property.  And  this  fact  was  speedily 
recognized.  In  Saint  Germain's  book  [Doctor  and  Student,  Dia- 
logue II.  c.  24]  published  in  1531,  the  student  of  law  thus  defines 
the  liability  of  a  promisor :  'If  he  to  whom  the  promise  is  made 
have  a  charge  by  reason  of  the  promise  ...  he  shall  have  an  ac- 
tion for  that  thing  that  was  promised,  though  he  that  made  the 
promise  have  no  worldly  profit  by  it.'  From  that  day  to  this  a 
detriment  has  always  been  deemed  a  valid  consideration  for  a 
promise  if  incurred  at  the  promisor's  request."  Ames,  History  of 
Assumpsit,  2  Harv.  L.  Eev.  1  at  14. 

WIRRALL   V.   BRAND. 

In  the  King's  Bench.     1665. 

Reported  1  Levinz,  165. 

By  a  natural  transition,  actions  upon  parol  promises  came  to  be  regarded 
as  actions  ex  contractu. 

Assumpsit  against  two  executors  on  the  promise  of  a  testator; 
issue  no)i  assumpsit,  one  executor  dies,  which  is  suggested  on  the 
Roll,  and  the  trial  had  against  the  other,  and  verdict  for  the  plaintiff. 
And  it  was  moved  by  Jones  in  arrest  of  judgment  that  the  bill 
was  abated  by  che  death  of  the  one  in  cases  of  contract,  but  other- 
wise in  cases  of  trespass,  as  50  Edw.  III.  7  ;  40  Edw.  III.  26  h  ;  Fitz. 
Brief,  263,  344,  &  Plowd.  Com.  186  h.  In  case  of  executors  sued 
on  a  contract,  the  death  of  one  abates  the  writ.     But  of  this,  in 

1  Til  is  decision  marks  the  abandonment  of  the  distinction  between  misfeasance  and 
nonfeasance,  in  the  case  of  promises  given  for  money. 


224  CASES    ON    COMMON-LAW    PLEADING. 

case  of  executors,  the  court  at  first  doubted ;  but  at  another  day 
having  seen  the  case  in  Plowd.  186,  Woodward  v.  Davis,  which  is 
directly  in  point,  they  resolved  that  the  writ  abated  and  stayed  the 
judgment.^ 

1  "  The  right  of  action  for  the  breach  of  a  contract  upon  the  death  of  either  party  in 
general  survives  to  and  against  the  executor  or  administrator  of  each ;  but  iu  tlie  case 
of  torts,  when  the  action  must  be  in  form  ex  delicto,  for  the  recovery  of  damages,  and 
the  plea  not  guilty,  the  rule  at  common  law  was  otherwise;  it  being  a  maxim  that 
actio  personalis  moritur  cum  persona.  And  we  shall  find  that  tlie  statute  4  Edw.  IIL  c.  7, 
[which  provides  for  an  action  of  trespass  by  executors  for  a  wrong  done  to  their  tes- 
tator] has  altered  this  rule  only  in  its  relation  to  personal  property,  and  in  favor  of  the 
personal  representative  of  the  party  injured;  but  if  the  action  can  be  framed  in  form 
ex  contractu,  this  rule  does  not  apply.  We  will  now  consider  the  rule  as  it  affects 
actions  for  injuries  to  the  person,  and  to  personal  and  real  property. 

"  In  the  case  of  injuries  to  the  person,  whether  by  assault,  battery,  false  imprison- 
ment, slander,  or  otlierwise,  if  either  the  party  who  received  or  committed  tiie  injury 
die,  no  action  can  be  supported  either  by  or  against  the  executors  or  other  personal 
representatives;  for  the  statute  4  Edw.  III.  c.  7,  has  made  no  alteration  in  the  common 
law  in  that  respect;  and  the  statute  .3  and  4  Will.  IV.  c.  42,  s.  3,  only  gives  executors 
and  administrators  an  action  for  torts  to  the  personal  or  real  estate  of  the  party  in- 
jured, and  not  for  mere  injuries  to  the  person  ;  and  a  promise  to  marry  is  considered 
of  so  personal  a  nature,  that  although  tlie  action  for  its  breach  is  in  form  ex  contractu, 
yet  the  executor  of  the  party  to  whom  the  promise  was  made  cannot  sue. 

"  At  common  law,  in  the  case  of  injuries  to  personal  property,  if  either  party  died,  in 
general  no  action  could  be  supported,  either  by  or  agiiinst  the  personal  representatives 
of  the  parties,  where  the  action  must  have  been  in  form  ex  delicto  and  the  plea  not 
guilty  ;  but  if  an}-  contract  could  be  implied,  as  if  the  wrong-doer  converted  the  property 
into  money,  or  if  the  goods  remained  in  specie  in  the  hands  of  the  executor  of  tlie  wrong- 
doer, assumpsit  for  money  had  and  received  might  be  supported  at  common  law  by  or 
against  the  executors  in  the  former  case,  and  trover  against  the  executors  in  the  latter. 
By  the  statute  3  Edw.  III.  c.  8,  intituled  '  Executors  shall  liave  an  action  of  trespass  for 
a  wrong  done  to  the  testator,'  and  reciting  '  that  in  times  past  executors  have  not  had 
actions  for  a  trespass  done  to  their  testators,  as  of  the  goods  and  chattels  of  the  same 
testators  carried  away  in  their  life,  and  so  such  trespasses  have  hitherto  remained 
unpunished,'  it  is  enacted,  '  that  tlie  executors  in  such  cases  shall  have  an  action 
against  the  trespassers,  and  recover  their  damages  in  like  manner  as  they,  whose  exec- 
utors they  be,  should  have  iiad  if  they  were  in  life  ;  '  and  this  remedy  is  further  ex- 
tended to  the  executors  of  executors,  and  to  administrators.  It  has  been  observed, 
that  the  taking  of  goods  and  chattels  was  put  in  the  statute  merely  as  an  instance,  and 
not  as  restrictive  to  such  injuries  only,  and  that  the  term  'trespass'  must,  with  refer- 
ence to  the  language  of  the  times  when  the  statute  was  passed,  signify  any  wrong  ;  and 
accordingly  the  statute  has  been  construed  to  extend  to  every  description  of  injury  to 
personal  property,  by  which  it  has  been  rendered  less  beneficial  to  the  executor,  what- 
ever the  form  of  action  may  he ;  so  that  an  executor  may  support  trespass  or  trover, 
case  for  a  false  return  to  final  process,  and  case  or  debt  for  an  escape,  etc.  on  final  pro- 
cess. And  although  it  has  been  doubted  whether  an  executor  could  sue  for  an  escape 
on  mesne  process  in  the  lifetime  of  h*s  testator  ;  it  seems  that  on  principle  he  might; 
and  he  may  support  debt  for  not  setting  out  tithes ;  or  against  a  tenant  for  double 
value  for  holding  over;  or  against  an  attorney  for  negligence;  or  debt  against  an 
executor,  suggesting  ?i  devastavit  in  the  lifetime  of  the  plaintiff's  testator;  or  case 
against  the  sheriff  for  removing  goods  taken  in  execution,  without  paying  the  testator 
a  year's  rent ;  or  an  action  of  ejectment  or  quare  impedit,  for  the  disturbance  of  the 
testator.  We  will  presently  state  the  extension  of  remedy  by  3  and  4  Will.  IV.  c. 
42,  s.  2. 

"  With  respect  to  injuries  to  real  property,  if  either  party  die,  no  action  in  form  ex 


THE    PARENT    OF    CASE,   TROVER,   AND    ASSUMPSIT.  225 

(1)    ELSEE   AND   ANOTHER   v.   GATWARD. 

Ix  THE  King's  Bench.     179.3. 

Kkported  5  Term  Keports,  143. 

A.  agrees  with  B.  without  consideration  to  do  something,  and  does  not  do 
it.  B.  suffers  damage.  A.  agrees  with  B.  without  consideration  to  do  some- 
thing, and  does  it  badly  to  B.'s  damage.  A.  is  liable  for  the  misfeasance,  not 
for  the  nonfeasance. 

This  was  an  action  upon  the  case.  The  first  count  in  the 
declaration  stated  that  the  plaintiffs  on  the  29tli  of  August,  1791, 

delicto  could  be  supported  either  by  or  against  his  personal  representatives  before  the 
3  and  4  Will.  IV.  c.  42,  s.  2  ;  and  although  tlie  statute  4  Edw.  III.  c.  7,  might  bear  a  more 
liberal  construction,  the  decisions  confined  its  operation  to  injuries  to  personal  property  ; 
and  therefore  an  executor  could  not  support  an  action  of  trespass  r^nare  clausiim  freyit, 
or  merely  for  cutting  down  trees  or  other  waste  in  the  lifetime  of  the  testator :  and 
though  in  Emerson  v.  Emerson,  1  Vent.  187;  2  Keb.  874;  Sir  W.  Jones,  174,  177;  1 
15.  and  P.  329,  it  was  holdeu  that  a  declaration  by  an  executor  for  mowing,  cutting 
down,  taking  and  carrying  away  corn,  might  be  supported,  the  allegation  of  the  cut- 
ting down  being  considered  merely  as  a  description  of  the  manner  of  taking  away  the 
corn,  for  which  an  action  is  sustainable  by  virtue  of  the  statute  ;  yet  it  was  decided 
that  if  the  declaration  had  been  quare  claunumf regit,  et  li/adu  aspurtuvif,  it  would  have 
been  insufficient ;  and  that  if  the  defendant  had  merely  cut  the  com  and  let  it  lie,  or 
if  the  grass  of  the  testator  had  been  cut  and  carried  away  at  the  same  time,  no  action 
could  have  been  supported  by  the  executor.  We  have  seen,  however,  that  an  action 
may  be  supported  by  a  devisee  for  the  continuance  of  a  uui.sance  erected  in  tlie  lifetime 
of  the  testator.  And  a  bill  in  equity,  for  an  account  of  equitalde  waste  committed  by 
a  tenant  for  life,  may  be  maintained  against  his  personal  representatives. 

"  The  3  and  4  Will.  IV.  c.  42,  s.  2,  has  introduced  a  material  alteration  in  the  com- 
mon-law doctrine,  actio  personalis  moritur  cum  persona,  as  well  in  favor  of  executors  and 
administrators  of  the  party  injured,  as  against  the  personal  representative  of  the  party 
injured,  but  I'espects  only  injuries  to  personal  and  real  property,  and  subject  to  certain 
restrictions  as  regards  the  commencement  of  an  action  for  such  injury  within  a  short 
time  after  the  death,  and  declaring  that  the  damages  to  be  recovered  from  an  execu- 
tor or  administrator  shall  be  ranked  or  classed  with  simple  contract  debts.  The  act 
recites,  that  there  is  no  remedy  provided  by  law  for  injuries  to  the  real  estate  of 
any  person  deceased  committed  in  his  lifetime,  nor  for  certain  wrongs  done  by  a  per- 
son deceased  in  his  lifetime  to  another,  in  respect  of  his  property,  real  or  personal : 
for  remedy  thereof  it  enacts,  that  an  action  of  trespass,  or  trespass  on  the  case,  as  tlie 
case  may  be,  may  he  maintained  by  the  executors  or  administrators  of  any  person  de- 
ceased, for  an  injury  to  the  real  estate  of  such  person,  committed  in  his  lifetime,  for 
which  an  action  might  have  been  maintained  by  such  person  ;  so  as  such  injury  shall 
have  been  committed  witliin  six  calendar  months  before  the  death  of  such  deceased 
person,  and  provided  such  action  shall  be  brought  within  one  year  after  the  death  of 
such  person,  and  the  damages,  when  recovered,  shall  be  part  of  the  personal  estate  of 
such  person ;  and  further,  that  an  action  of  trespass,  or  trespass  on  the  case,  as  the 
case  may  be,  may  be  maintained  against  the  executors  or  administrators  of  any  person 
deceased,  for  any  wrong  committed  by  him  in  his  lifetime  to  another,  in  respect  of  his 
property  real  or  personal,  so  as  such  injury  shall  have  been  comnn'tted  within  six  cal- 
endar months  before  such  person's  death,  and  so  as  such  action  shall  be  broughtwitliiu 
six  calendar  months  after  such  executors  or  administrators  shall  have  takeu  upon 

15 


226  CASES    ox   COMMOX-LAW   PLEADING. 

were  about  to  build  a  -warehouse,  etc.,  and  to  rebuild  and  repair  cer- 
tain parts  of  a  dwelling-house  and  stables,  etc.,  and  were  desirous  of 
having  the  warehouse  completely  tiled  and  covered  in,  and  the  front 
of  the  dwelling-house  rebuilt,  on  or  before  the  1st  of  November  then 
next,  and  also  of  having  the  bricklayers'  and  carpenters'  works  of 
the  warehouse  completely  finished  on  or  before  the  1st  of  Decem- 
ber, and  the  whole  of  the  remaining  repairs  finished  on  or  before 
the  25th  of  December  then  next,  and  thereupon  the  plaintiffs  on  the 
29th  of  August,  1791,  at  the  special  instance  and  request  of  the 
defendant,  who  was  a  builder,  and  had  full  notice  of  the  premises, 
retained  and  employed  the  defendant- to  do  and  perform  all  and 
singular  the  bricklayers'  and  carpenters'  works  which  should  be 
requisite  on  the  occasion  aforesaid  within  the  several  times  here- 
inbefore mentioned  for  the  completion  thereof  respectively ;  and 
although  the  defendant  afterwards  accepted  of  such  retainer  and 
employment  upon  the  terms  aforesaid,  and  could  and  ought  to  have 
completed  all  such  bricklayers'  and  carpenters'  works  within  the 
said  respective  times,  yet  the  defendant  contriving  to  injure  the 
plaintiffs,  etc.,  did  not,  nor  would,  completely  tile  or  otherwise  cover 
in  the  said  warehouse,  etc.,  on  or  before  the  said  1st  of  November, 
nor  did  nor  would  finish  the  bricklayers'  and  carpenters'  works  of 
the  warehouse  on  or  before  the  said  1st  day  of  December,  and  the 
whole  of  the  remaining  repairs  on  or  before  the  said  25th  of  Decem- 
ber, etc.,  but  on  the  contrary  permitted  the  said  warehouse  to  con- 
tinue untiled  and  uncovered,  etc.,  in  consequence  of  which  said 
neglect  of  the  defendant  the  walls  of  the  said  premises  were  greatly 
sapped  and  rotted,  and  the  ceilings  damaged  and  spoiled,  and  the 
plaintiffs  were  obliged  to  continue  tenants  of  another  warehouse 
and  stables,  etc.,  and  were  thereby  put  to  additional  expense,  etc. 
The  second  count  stated  that  the  plaintiffs  on  the  29th  of  August, 
1791,  being  possessed  of  divers  old  materials  of  buildings,  retained 
and  employed  the  defendant  at  his  instance  and  request  to  do  and 
perform  certain  bricklayers'  and  carpenters'  works  upon  divers 
buildings  and  premises  of  them  the  plaintiffs,  and  to  use  and  apply 
in  and  about  those  works  all  such  parts  of  the  old  materials  as  were 
fit  and  proper  for  that  purpose,  and  that  although  divers  parts  of 
the  said  old  materials  were  fit  and  proper  to  have  been  used  and 
applied  in  and  about  the  said  works,  yet  the  defendant,  contriving 
to  injure  the  plaintiffs  in  this  behalf,  and  to  enhance  the  expense  of 
the  bricklayers'  and  carpenters'  works,  did  not  nor  would  use  and 

themselves  the  administration  of  the  estate  and  effects  of  such  person;  and  the  dam- 
ages to  be  recovered  in  such  action  shall  be  payable  in  like  order  of  administration  as 
the  simple  contract  debts  of  sucli  persons."     Chitty,  Pleading,  Vol.  I.  pp.  77-80. 


THE  PARENT  OF  CASE,  THOVEE,  AXD  ASSUMPSIT.      227 

apply  in  and  about  the  said  works  such  parts  of  the  old  materials 
as  were  lit,  etc.,  but  refused  so  to  do,  and  wrongfully  and  injuriously 
used  and  applied  in  and  about  the  same  works  other  new  and  ex- 
pensive materials  in  the  stead  of  such  old  materials  as  were  fit  and 
proper  for  the  same  purposes ;  whereby  the  plaintiff's  were  put  to 
an  unnecessary  expense,  etc.,  and  the  old  materials  became  wholly 
useless,  etc.    There  was  a  third  count  in  trover  for  the  old  materials. 

The  defendant  demurred  to  the  two  first  counts ;  alleging  for 
causes  that,  notwithstanding  the  whole  of  the  supposed  causes  of 
action  in  those  courts  were  in  the  nature  of  a  nonfeasance,  and  con- 
sisted in  the  nonperformance  of  certain  matters  and  things  in  those 
counts  mentioned  as  having  been  omitted  to  be  done  by  the  defend- 
ant, it  was  not  stated  in  either  of  those  counts,  nor  did  it  thereby 
appear,  that  the  defendant  by  any  promise,  undertaking,  contract,  or 
agreement,  was  bound  to  the  performance  of  those  several  matters 
or  things,  etc.  That,  although  the  several  supposed  causes  of  action 
in  those  counts  were  founded  upon  implied  contracts  in  law,  no 
sufficient  ground  or  consideration  to  raise  or  support  such  implied 
contracts  was  stated.  That  there  was  not  stated,  nor  did  it  appear, 
in  those  counts  that  there  was  any  promise  or  contract  on  the  part 
of  the  defendant,  upon  wliich  the  breaches  in  those  counts  could 
operate.  And  that  those  counts  did  not  contain  any  cause  of 
action  against  the  defendant,  etc.  The  parties  went  to  trial,  wlien 
a  verdict  was  given  for  the  defendant  on  the  count  in  trover,  and 
conditional  damages  assessed  for  the  plaintiffs  on  the  two  counts 
demurred  to. 

Park,  in  support  of  the  demurrer. 

Marryatt,  contra. 

Lord  Kenyon,  Ch.  J.  If  this  had  been  an  action  of  assumpsit,  it 
could  not  have  been  supported  for  want  of  a  consideration :  it 
would  have  been  nudum  pactum.  And  if  both  the  counts  be  not 
good,  the  defendant  is  entitled  to  judgment.  Now,  I  do  not  think 
that  the  first  count  in  the  declaration  is  good  in  lav^^  It  states 
that  the  defendant,  who  is  a  carpenter,  was  retained  by  the  plain- 
tiffs to  build  and  to  repair  certain  houses  ;  but  it  is  not  stated  that 
he  was  to  receive  any  consideration,  or  that  he  entered  upon  his 
work.  No  consideration  results  from  his  situation  as  a  carpenter, 
nor  from  the  undertaking  ;  nor  is  he  bound  to  perform  all  the 
work  that  is  tendered  to  him ;  and  therefore  the  amount  of  this 
is  that  the  defendant  has  merely  told  a  falsehood,  and  has  not  per- 
formed his  promise ;  but  for  his  nonperformance  of  it  no  action 
can  be  supported.  This  is  warranted  by  Lord  Holt's  opinion  in 
Coggs  V.  Bernard,  where,  recognizing  the  case  in  11  Hen.  IV.  33, 


228  CASES   ON   COMMON-LAW   PLEADING. 

he  said,  "There  the  action  was  brought  against  a  carpenter,  for 
that  he  had  undertalcen  to  buihl  the  plaintiff  a  house  within  such 
a  time,  and  had  not  done  it,  and  it  was  adjudged  the  action  would 
not  lie."  And  on  this  opinion  I  think  I  may  safely  rely,  especially 
as  the  justice  of  the  case  will  not  be  altered  by  the  form  of  the 
action  ;  for  if  assumpsit  will  not  lie  in  such  a  case,  there  is  no  tech- 
nical reasoning  that  will  support  such  an  action  as  for  a  tort.  In 
that  case  Powell,  J.,  said,  "  an  action  will  not  lie  for  not  doing  the 
thing  for  want  of  a  sufficient  consideration  ;  but  if  the  bailee  will 
take  the  goods  into  his  custody,  he  shall  be  answerable  for  them  ; 
for  the  taking  of  the  goods  into  his  custody  is  his  own  act."  Lord 
Holt  there  put  several  cases  to  establish  this  position,  which  will 
reconcile  the  cases  now  cited  on  the  part  of  the  plaintiffs.  In 
Brown  v.  Dixon,  the  defendant  had  received  the  dog  into  his  pos- 
session. This  case  is  very  distinguishable  from  those  of  common 
carriers  and  porters,  from  whose  situations  certain  duties  result ; 
they  are  bound  by  law  to  carry  goods  delivered  to  them,  and  are 
by  law  entitled  to  a  recompense :  but  no  such  duty  results  from 
the  situation  of  a  carpenter ;  he  is  not  bound,  as  such,  to  perform 
all  the  work  that  is  brought  to  him.  It  appears  to  me,  therefore, 
that  the  first  count  cannot  be  supported,  there  being  no  considera- 
tion expressly  stated,  nor  any  consideration  resulting  from  the 
defendant's  employment  as  a  carpenter;  though, had  the  defendant 
performed  the  work,  he  might  have  recovered  a  satisfaction  on  a 
quantum  meruit.  Upon  the  authority  of  Coggs  v.  Bernard,  and 
the  cases  there  noticed,  not  contradicted  by  any  other  decision,  I 
think  that  the  first  count,  for  nonfeasance,  is  bad,  but  that  the 
second  count  may  be  supported.  It  is  there  stated  that  the  de- 
fendant entered  upon  his  employment,  and  that  he  did  not  do  that 
which  he  ought  to  have  performed  according  to  his  retainer.  In 
that  count  it  is  stated  that  he  undertook  to  use  the  old  materials, 
that  in  fact  he  did  not  use  those,  but  substituted  new  ones  in  their 
stead,  thereby  enhancing  the  expense  to  the  plaintiffs.  This  comes 
within  the  case  mentioned  by  Lord  Holt  in  Coggs  v.  Bernard, 
speaking  of  the  same  case  in  the  Year  Books,  "but  there  the  ques- 
tion is  put  to  the  court  wdiat  if  he  had  built  the  house  unskilfully ; 
and  it  was  agreed  in  that  case  an  action  would  have  lain."  For 
though  the  defendant  could  not  have  been  compelled  to  build  this 
house,  and  to  use  the  old  materials,  yet  having  entered  upon  the 
contract,  he  was  bound  to  perform  it ;  and  not  having  performed  it 
in  the  manner  proposed,  an  action  lies  agninst  him. 

Ashhurst,  J.    The  second  count  may  be  maintained,  inasmuch 
as  it  appears  that  the  defendant  was  retained  by  the  plaintiffs,  that 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      229 

he  entered  upon  the  work  in  consequence  of  that  retainer,  and  that 
he  did  not  perform  it  according  to  the  terms  of  the  retainer,  by 
using  new  materials  instead  of  the  old,  which  subjected  the  plain- 
tiff's to  a  considerable  expense.  This  amounts  to  a  misfeasance  on 
the  part  of  the  defendant,  and  may  be  the  foundation  of  an  action. 
But  the  first  count  cannot,  I  think,  be  supported.  The  distinction 
is  this :  if  a  party  undertake  to  perform  work,  and  proceed  on  the 
employment,  he  makes  himself  liable  for  any  misfeasance  in  the 
course  of  that  work ;  but  if  he  undertake,  and  do  not  proceed  on 
the  work,  no  action  will  lie  against  him  for  the  nonfeasance.  In 
this  case,  the  defendant's  undertaking  was  merely  voluntary,  no 
consideration  for  it  being  stated.  There  was  no  custom  of  the 
realm,  or  any  legal  obligation,  to  compel  him  to  perform  this  work ; 
and  that  distinguishes  this  case  from  those  of  a  common  carrier, 
porter,  and  ferryman,  who  are  bound  from  their  situations  in  life  to 
perform  the  work  tendered  to  them ;  but  a  carpentQj",  as  such,  is 
not  bound  by  any  such  obligation.  This  count  is  merely  for  non- 
feasance, and  it  does  not  state  that  the  defendant  entered  upon 
the  employment.  It  is  indeed  alleged  that  he  did  not  finish  the 
work,  from  whence  the  j^laintiffs  wish  the  court  to  infer  that  he 
had  begun  upon  it ;  but  as  that  is  the  gist  of  the  action,  it  should 
have  been  stated  expressly.  Nor  is  it  a  necessary  inference  to  be 
drawn  from  the  facts  stated ;  for,  consistently  witli  everything 
alleged,  the  defendant  may  not  have  begun  the  work  at  all.  But 
it  has  been  contended  that  it  was  not  necessary  to  allege  that  the 
defendant  was  employed  to  perform  this  work  for  hire  and  reward, 
it  being  stated  that  he  was  retained,  and  that  iadehitatiis  assumpsit 
would  have  lain  by  the  defendant  if  he  had  performed  it.  I  admit 
tlmt  the  defendant  might  have  recovered  a  satisfaction  in  such  an 
action,  if  he  had  executed  the  work :  but  in  order  to  compel  him  to 
perform  it,  it  should  appear  that  there  was  an  express  consideration 
for  it ;  the  word  "  retain  "  does  not  necessarily  show  that  there  was 
a  consideration. 

Grose,  J.  The  jury  having  given  damages  on  both  the  counts 
jointly,  it  becomes  necessary  to  consider  them  both,  because  if  either 
be  bad,  the  defendant  will  be  entitled  to  judgment ;  and  it  appears 
to  me  that  they  fall  under  different  considerations.  The  first  count 
is  for  confeasance,  and  it  alleges  a  promise  without  showing  any 
consideration  for  it.  It  has  been  argued  that  if  the  defendant  had 
performed  the  work,  he  might  have  maintained  an  action  for  a 
satisfaction  for  his  labor:  but  that  does  not  necessarily  follow:  it 
must  have  depended  upon  circumstances ;  perhaps  he  engaged  to 
do  the  work  gratuitously,  and  if  so,  he  could  not  have  recovered  iu 


230  CASES    ON   COMMON-LAW   PLEADING. 

an  action :  however,  this  does  not  appear  one  way  or  the  other  on 
the  face  of  the  declaration.  That  such  an  action  as  this  cannot  be 
supported  is  clear  from  the  opinions  of  Holt,  Ch.  J.,  and  Powell,  J., 
as  delivered  in  Coggs  v.  Bernard,  who  founded  their  opinions  oil  a 
case  in  the  Year  Books,  which  they  considered  as  law.  There  the 
gravamen  was  like  the  present;  and  after  Tilsby,  who  was  counsel 
for  the  defendant,  had  objected  to  the  action,  Norton,  the  plaiutih's'' 
counsel,  asked  what  would  have  been  the  consequence  if  the  de- 
fendant had  built  the  house  badly ;  not  putting  the  case  of  not 
building  the  house ;  to  which  one  of  the  judges  answered,  that  in 
such  a  case  an  action  would  have  lain  for  the  wrong.  But  when  a 
person  agrees  to  do  a  thing  without  any  consideration,  and  fails  in 
his  promise,  no  action  will  lie  against  him  for  the  nonperformance. 
And  llolle,  in  mentioning  this  case  in  11  Hen.  lY.,  considers  it  to 
have  been  determined  on  account  of  the  want  of  consideration. 
Therefore  that  case  is  directly  in  point ;  for  this  is  an  action  for 
nonfeasance,  without  any  consideration ;  it  is  not  stated  that  the 
defendant  entered  upon  the  work,  or  undertook  it  for  any  reward ; 
which  is  one  of  the  instances  mentioned  by  Powell,  J.,  in  Coggs  v. 
Bernard,  in  which  he  thought  no  action  would  lie.  The  first  count, 
therefore,  cannot  be  supported.  But  the  second  may,  on  the  reason- 
ing in  Coggs  V.  Bernard ;  for  it  is  for  misfeasance.  The  defendant 
is  bound  in  consequence  of  having  entered  upon  the  work;  and 
wliether  the  work  were  or  were  not  to  be  performed  for  hire,  the 
defendant  was  not  to  injure  the  plaintiffs  ;  and  here  considerable 
expenses  were  incurred  in  consequence  of  his  using  the  new,  instead 
of  the  old  materials.  This  is  a  misfeasance,  and  on  that  ground  I 
think  that  the  second  count  may  be  supported. 

Fer  curiam.  Judgment  for  the  defendant.^ 


COGGS   V.  BERNARD. 

In  the  Queen's  Bench.     1703. 

Reported  1   Salkeld,  26;  s.  c.  2  Lord  Raymond,  909;  s.  c.  Comyns,  1.*53. 

A.  agrees  with  B.,  without  consideration,  to  do  something  for  B.  and  does 
it  badly,  to  B.'s  damage.     Case  for  misfeasance  will  lie. 

Case:  whereas  the  defendant  assumpsit  to  take  up  a  hogshead  of 
brandy  in  a  cellar  in  D.  and  safely  to  lay  it  down  in  another  cellar, 
that  he  tani  negligenter  laid  and  put  it  down  in  another  cellar,  that 
for  want  of  care  the  cask  was  staved,  and  so  much  brandy  was 
lost.     Objected,  in  arrest  of  judgment.  That  there  is  no  considera- 

1  The  arguments  of  counsel  are  omitted. 


THE  PAKENT  OF  CASE,  TEOVER,  AND  ASSUMPSIT.      231 

tion;  for  the  defendant  is  not  to  have  a  reward,  and  it  does  not 
appear  he  is  a  common  carrier,  or  porter,  so  as  to  be  entitled  to  a 
reward ;  he  is  only  to  have  his  labor  for  his  pains,  so  that  this  is 
nudum  pactuyn  without  consideration.  But  by  Molt,  C.  J.  If  the 
agreement  had  been  only  executory,  as  that  he  assumed  to  carry  it, 
and  did  not,  no  action  would  have  lain.     Like  the  case  of  11  Hen. 

IV.  33.  Action,  for  that  he  promised  to  build  him  a  house  by  such 
a  day,  and  did  not;  adjudged  it  lay  not  in  that  case;  but  here  he 
was  actually  entered  upon  the  thing  according  to  his  promise,  and 
therefore  having  miscarried,  he  is  liable  to  an  action ;  for  it  is  a  de- 
ceit upon  the  plaintiff  who  trusted  him,  and  that  is  the  cause  of 
action ;  for  though  he  was  not  bound  to  enter  upon  the  trust,  yet 
if  he  does  enter  upon  it,  he  must  take  care  not  to  miscarry,  at 
least  by  mismanagement  of  his  own.  Aliter,  perhaps,  if  a  drunken 
man  had  run  upon  him  in  the  street,  and  thrown  down  the  cask,  or 
one  had  privately  pierced  it,  because  he  had  no  reward.  It  is  indeed 
held  in  Yelv.  128  that  if  H.  deliver  goods  to  A.  and  in  consideration 
thereof  he  promise  to  redeliver  them,  that  yet  no  action  will  lie 
for  not  redelivering  them ;  but  that  resolution  is  not  law,  and  was 
always  grumbled  at.  And  2  Cro.  667,  where  money  was  delivered  to 
pay  over  sine  mora,  is  contrary  ;  for  though  the  party  has  no  benefit, 
yet  if  he  takes  the  trust  upon  him,  he  is  bound  to  perform  it.  Vide 
3  Hen.  VI.  26 ;  Dr.  &  Stud.  129 ;  Owen,  141 ;  Keb.  160. 

Judgment  pro  que r  per  totam  cur?- 

INDEBITATUS   ASSUxMPSIT. 

"  The  defendant,  having  become  indebted,  has  under- 
taken." 

ORIGIN   OF   THE   ACTION. 

"  The  origin  of  indebitatus  assu7npsit  may  be  explained  in  a  few 
words:  Blade's  Case  [4  Rep.  92  a;  Yelv.  21;  Moore,  433,  667],  de- 
cided in  1603,  is  commonly  supposed  to  be  the  source  of  this  action. 
But  this  is  a  misapprehension.  Indebitatus  assumpsit  upon  an  ex- 
press promise  is  at  least  sixty  years  older  than  Slade's  Case.  The 
evidence  of  its  existence  throughout  tlie  last  half  of  the  sixteenth 
century  is  conclusive.  There  is  a  note  by  Brooke,  who  died  in  1558, 
as  follows:  'Where  one  is  indebted  to  me,  and  he  promises  to  pay 

1  In  the  report  in  Lord  Raymond,  almost  the  whole  of  the  fundamental  law  of  bail- 
ment is  laid  down.    Vide  1  H.  Bl.  Kep.  158 ;  Jones's  Law  of  Bailment,  ^jer  totum  ;  Elsee 

V.  Gat  ward,  5  T.  R.  151. 


232  CASES    ON    COMMON-LAW   PLEADING. 

before  Michaelmas,  I  may  have  an  action  of  debt  on  the  contract, 
or  an  action  on  the  case  on  the  promise.'  In  Manwood  v.  Burston 
[2  Leon.  203,  204]  (1588),  Manwood,  C.  B.,  speaks  of  three  manners 
of  considerations  upon  which  an  assumpsit  maybe  grounded:  (1)  A 
debt  precedent;  (2)  where  he  to  whom  such  a  promise  is  made  is 
damnified  by  doing  anything,  or  spends  his  labor  at  the  instance 
of  the  promisor,  although  no  benefit  comes  to  the  promisor ;  .  .  . 
(3)  or  there  is  a  present  consideration."  Ames,  History  of  Assump- 
sit, 2  Harv.  L.  Rev.  1  at  16. 


SLADE'S   CASE.i 

In  the  King's  Bench.     1603. 

— -''       I    Reported  4  Reports,  92  h. 

Every  contract  executory  imports  in  itself  an  assumpsit. 

John  Slade  brought  an  action  on  the  case  in  the  King's  Bench 
against  Humphrey  Morely  (which  plea  began  Hil.  38  Eliz.  Rot.  305) 
and  declared,  that  whereas  the  plaintiff,  10th  of  November,  36  Eliz., 
was  possessed  of  a  close  of  land  in  Halberton,  in  the  county  of  Devon, 
called  Rack  Park,  containing  by  estimation  eight  acres  for  the  term 
of  divers  years  then  and  yet  to  come,  and  being  so  possessed,  the 
plaintiff,  the  said  tenth  day  of  November,  the  said  close  had  sowed 
with  wheat  and  rye,  which  wheat  and  rye,  8  Maii,  37  Eliz.,  were 
grown  into  blades,  the  defendant,  in  consideration  that  the  plaintiff, 
at  the  special  instance  and  request  of  the  said  Humphrey,  had  bar- 
gained and  sold  to  him  the  said  blades  of  wheat  and  rye  growing 
upon  the  said  close  (the  tithes  due  to  the  rector,  etc.,  excepted) 
assumed  and  promised  the  plaintiff  to  pay  him  £16  at  the  feast  of 
St.  John  the  Baptist  then  to  come ;  and  for  nonpayment  thereof 
at  the  said  feast  of  St.  John  Baptist,  the  plaintiff  brought  the  said 
action ;  the  defendant  pleaded  non  assunijJsU  7nodo  et  forma  ;  and 
on  the  trial  of  tliis  issue  the  jurors  gave  a  special  verdict,  sc.  that 
the  defendant  bought  of  tlie  plaintiffs  the  wheat  and  rye  in  blades 
growing  upon  the  said  close  as  aforesaid,  i^roiit  in  the  said  declara- 
tion is  alleged,  and  further  found  that  between  the  plaintiff  and  the 
defendant  there  was  no  other  promise  or  assumption  but  only  the 
said  bargain  ;  and  against  the  maintenance  of  this  action  divers 
objections  were  made  by  John  Dodderidge  of  counsel  with  the 
defendant. 

^  The  case  is  not  reported  in  full ;  the  arguments  of  Dodderidge  and  so  much  of 
the  opinion  of  the  court  as  does  not  bear  upon  the  matter  in  hand  are  omitted. 


THE    PARENT   OF    CASE,   TROVER,   AND    ASSUMPSIT.  233 

And  for  the  honor  of  the  law,  and  for  the  quiet  of  the  subject 
in  the  appeasing  of  such  diversity  of  opinions  {quia  nil  in  lege  in- 
tolerahilius  est  eandem  rem  diverse  jure  censeri)  the  case  was  openly 
argued  before  all  the  Justices  of  England  and  Barons  of  the  Ex- 
chequer ;  s.  c.  Sir  John  Popham,  Knt.,  C.  J.  of  England,  Sir  Edni. 
Anderson,  Knt.,  C.  J.  of  tlie  Common  Pleas,  Sir  W.  Periam,  Chief 
Baron  of  the  Exchequer,  Clark,  Gawdy,  Walmesly,  Fenner,  Kings- 
mill,  Savil,  Warburton,  and  Yelverton,  in  the  Exchequer  Chamber, 
by  the  Queen's  Attorney-General  for  the  plaintiff,  and  by  John 
Dodderidge  for  the  defendant,  and  at  another  time  the  case  was 
argued  at  Sergeant's  Inn,  before  all  the  said  Justices  and  Barons, 
by  the  Attorney-General  for  the  plaintiff,  and  by  Francis  Bacon 
for  the  defendant,  and  after  many  conferences  between  the  Jus- 
tices and  Barons,  it  was  resolved,  that  the  action  was  maintainable, 
and  that  the  plaintiff'  should  have  judgment.  And  in  this  case 
these  points  [among  others]  were  resolved. 

3.  It  was  resolved,  that  every  contract  executory  imports  in  it- 
self an  assumpsit,  for  where  one  agrees  to  pay  money,  or  to  deliver 
anything,  thereby  he  assumes  or  promises  to  pay,  or  deliver  it,  and 
therefore  when  one  sells  any  goods  to  another,  and  agrees  to  deliver 
them  at  a  day  to  come,  and  the  other  in  consideration  thereof  agrees 
to  pay  so  much  money  at  such  a  day,  in  that  case  both  parties  may 
have  an  action  of  debt,  or  an  action  on  the  case  on  assumpsit,  for 
the  mutual  executory  agreement  of  both  parties  imports  in  itself 
reciprocal  actions  upon  the  case,  as  well  as  actions  of  debt,  and 
therewith  agrees  the  judgment  in  Eead  and  Norwood's  Case,  PL 
Com.  128. 

4.  It  was  resolved  that  the  plaintiff"  in  this  action  on  the  case  on 
assumpsit  should  not  recover  only  damages  for  the  special  loss  (if 
any  be)  which  he  had,  but  also  for  the  whole  debt,  so  that  a  re- 
covery or  bar  in  this  action  would  be  a  good  bar  in  an  action  of 
debt  brought  upon  the  same  contract ;  so  vice  versa,  a  recovery  or 
bar  in  an  action  of  debt  is  a  good  bar  in  an  action  on  the  case  on 
assumpsit.  Vide  12  Edw.  IV.  13  a;  2  Ft.  3, 14  ;  (32)  33  Hen.  VIII. 
Action  sur  le  Case,  Br.  105. 

5.  In  some  cases  it  would  be  mischievous  if  an  action  of  debt 
should  be  only  brought,  and  not  an  action  on  the  case,  as  in  the 
case  inter  Redman  and  Peck,  2  and  3  Ph.  and  Mar.  Dyer,  113,  they 
bargained  together,  that  for  a  certain  consideration  Redman  should 
deliver  to  Peck  twenty  quarters  of  barley  yearly,  during  his  life, 
and  for  nondelivery  in  one  year,  it  is  adjudged  that  an  action  well 
lies,  for  otherwise  it  would  be  mischievous  to  Peck,  for  if  he  should 
be  driven  to  his  action  of  debt,  then  he  himself  could  never  have  it, 


234  CASES    ON   COMMON-LAW   PLEADIXG, 

but  his  executors  or  administrators,  for  debt  doth  not  lie  in  such 
case  till  all  the  days  are  incurred,  and  that  would  be  contrary  to 
the  bargain  and  intent  of  the  parties,  for  Peck  provides  it  yearly  for 
his  necessary  use ;  so  5  Mar.  Br.  Action  sur  le  Case,  108,  that  if  a 
sum  is  given  in  marriage  to  be  paid  at  several  days,  an  action  upon 
the  case  lies  for  nonpayment  at  the  first  day,  but  no  action  of  debt 
lies  in  such  case  till  all  the  days  are  past.  Also  it  is  good  in  these 
days  in  as  many  cases  as  may  be  done  by  the  law,  to  oust  the  defend- 
ant of  his  law,  and  to  try  it  by  the  country,  for  otherwise  it  would 
be  the  occasion  of  much  perjury. 


.  PECKE   V.  REDMAN.i 

*  In  the  King's  Bench.     1555. 

Reported  Dyer,  113  a. 
Mutual  promises  are  the  support  of  each  other. 

In  B.  E.  a  verdict  given  at  the  last  assize  by  nisi  prius  for  the 
plaintiff' in  an  action  upon  the  case  upon  an  assumpsit  was  traversed. 
And  the  case  was.  That  one  Pecke  and  one  Redman  bargained  to- 

1  "  The  rule  that  mutual  promises  are  the  cousideratiou  for  eacli  other  has  been 
recognized  since  1.555."  Harriiiiau  ou  Contracts,  §  94,  citing  Ames,  Parol  Contracts 
Prior  to  Assumpsit,  8  Harv.  L.  Kev.  259;  I'ecke  v.  Redman,  Dyer,  113  a,  decided  iu 
1555.     The  case  does  not  support  the  proposition. 

Three  possible  explanations  of  the  decision  in  Pecl^e  v.  Redman,  Dyer,  113  a,  sug- 
gest themselves.  An  action  ou  the  case  was  in  the  nature  of  a  bill  in  equity.  As- 
sumpsit was  an  offspring  of  case,  inheriting  its  characteristics.  Ashbyi;.  White,  2  Ld. 
Raym.  938  ;  Bird  u.  Randall,  3  Burr.  1253  ;  both  reported  supra.  Debt  would  not  lie 
for  the  plaintiff,  since  the  cause  of  action  necessary  to  sustain  debt  could  accrue  only 
to  his  executors.  Slade's  Case,  4  Rep  92  /;,  reported  supra.  Nor  would  covenant  lie. 
There  was  no  specialty.  Hence,  unless  a  remedy  were  given  the  plaintiff  outside  of 
these,  he  could  not  recover.  But  the  law  will  not  allow  a  right  to  be  without  a  remedy. 
Ashby  V.  White,  2  Ld.  Raym.  938,  rejwrted  supra.  Hence  a.ssumpsit  (or  better,  an 
action  on  the  case  on  the  defendant's  undertaking)  was  given  to  the  ])laintiff. 

Again,  consideration  involves  the  parting  with  a  legal  right.  This  is  lacking 
in  the  case  of  mutual  promises.  Where  is  there  a  gain  to  the  promisor,  or  a  loss 
to  the  promisee  ?  Shall  we  not  say,  therefore,  that  the  case  of  mutual  promises  fur- 
nishes an  anomaly  in  the  law  of  contracts  and  consideration,  parallel  to  the  case  of  a 
specialty  ? 

We  often  hear  it  said  that  the  presence  of  a  seal  on  an  agreement  raises  a  presump- 
tion of  consideration.  Nothing  could  be  more  erroneous.  We  have  already  seen 
cases  decided  before  the  madern  doctrine  of  consideration  was  ever  conceived  of, 
holding  that  unsealed  acquittances  were  worthless.  Y.  B.  30  Edw.  I.  159,  reported 
supra  ;  Fleta  II.  c.  60,  §  25.  "  By  parol  the  party  is  not  obliged,"  Y.  B.  29  Kdw.  IIL 
25,  26.  This  because  of  a  rule  of  procedure.  See  remarks  of  Sir  John  Davies,  At- 
torney-General of  Ireland,  quoted  supra.  The  fact  is,  that  a  specialty  requires  no  con- 
sideration ;  and  that  is  an  end  of  the  matter.  There  is  no  "  presumption  "  about  it. 
So  iu  the  case  of  mutual  promises,  it  would  seem  a  more  correct  statement  of  the  law 


THE    PARENT   OF   CASE,    TROVER,    AND    ASSUMPSIT.  235 

"•ether  in  the  second  year  of  Edw.  VI.  that  Eedman  shonld  deliver 
or  cause  to  be  delivered  to  the  plaintiff  (who  was  Pecke)  twenty- 
quarters  of  barley  every  year  during  their  two  lives  between  certain 
days,  and  showed  them  in  certain,  and  that  the  plaintiff  should 
pay  four  shillings  for  each  quarter ;  and  showed  in  the  count  that 
the  defendant  broke  his  promise,  s.  that  he  failed  in  payment 
of  the  forty  quarters  for  three  years,  whereby  the  plaintiff'  was 
damnified  in  his  credit  and  protlt  to  the  amount  of  £30.  And  the 
defendant  pleaded  in  bar  a  condition  in  the  said  bargain,  without 
this,  that  he  undertook  in  manner  and  form,  etc.,  and  the  plaintiff 
e  contra.  And  it  was  found  for  the  plaintiff,  and  damages  assessed 
at  £4,  besides  costs,  etc.  The  question  is,  Whether  the  plaintiff 
shall  recover  the  damages  in  recompense  for  the  wliole  bargain  as 
well  for  the  time  to  come,  as  for  the  past,  or  not  ?  because  it  seemed 
to  divers  judges,  s.  Brooke,  Saunders,  and  Brown,  that  this  contract, 
which  has  a  continuance,  cannot  be  intended  to  be  recompensed  in 
the  damages  assessed  above,  s.  for  the  time  to  come,  for  they  cannot 
have  knowledge  of  what  that  will  be.  And  Portman,  Whyddon, 
and  Stamford,  e  contra.     Ideo  quaere  bene. 

"Although  the  right  to  trial  by  jury  w^as  the  principal  reason  for 
a  creditor's  preference  for  indehitatus  assumpsit,  the  new  action 
very  soon  gave  plaintiffs  a  privilege  which  must  have  contributed 
greatly  to  its  popularity.  In  declaring  in  debt,  except  possibly 
upon  an  account  stated,  the  plaintiff  was  required  to  set  forth  his 
cause  of  action  with  great  particularity.  Thus,  the  count  in  debt 
must  state  the  quantity  and  description  of  goods  sold,  with  the  de- 
tails of  the  price,  all  the  particulars  of  a  loan,  the  names  of  the  per- 

to  say  that  mutual  promises  require  no  consideration,  than  to  affirm  tliat  they  are  the 
consideration  for  each  other. 

Another  explanation  may  occur  to  the  learned  reader.  In  Bracton  we  find  some- 
thinjrakin  to  nmtual  promises. 

"  An  obligation  is  contracted  verbally  by  a  stipulation,  for  a  stipulation  is  a  form 
of  words,  which  consists  of  a  question  and  an  answer,  as  if  it  should  l)e  said.  Do  you 
promise  ?  I  promise.  Will  you  give  ?  I  will  give.  Will  you  do  it  ?  I  will  do  it. 
Do  you  pledge  your.self  ■?  I  do  pledge  myself."  [Observe  that  these  are  not  cases  of 
mutual  promises.] 

Is  it  not  more  probable  that  when  Pecke  v.  Redman  was  decided,  the  judges  and 
attorneys  were  tliinking  of  a  modification  of  the  consensual  obligation  of  tlie  Koniiin 
law  that  Bracton  knew,  than  of  any  theory  of  consideration,  wliich  word  is  not  men- 
tioned or  indicated  or  implied  in  the  case,  and  which  they  would  Iiave  to  inject  into 
it  without  precedent  ?  Is  it  not  the  form  of  words  tliat  binds  ?  and  is  not  the  bind- 
ing form  of  words  of  1.55.5  only  a  survival  of  the  binding  form  of  words  of  Bracton's 
day  ?  Granted,  the  form  of  words  is  modified,  but  it  is  still  a  form  of  words.  And 
if  that  be  true,  can  it  be  safely  .said  to-day  that  mutual  promises  are  the  consideration 
for  eacli  other  ?  No.  Consideration  is  only  anotlier  name  for  form,  and  the  form  of 
words  (i.  e.  mutual  promi.ses)  supplies  it.  Bracton,  f.  9'.»  h.  Cf.  Pillans  v.  Van  Mierop, 
3  Burr.  1663 ;  Holmes,  C.  L.  259 ;  Sharington  v.  Strotton,  Plowdeu,  298. 


236  CASES    ON   COMMON-LAW   PLEADING. 

sons  to  whom  money  was  paid,  with  the  amounts  of  each  payment, 
the  names  of  the  persons  from  whom  money  was  received  to  the 
use  of  the  plaintiff,  with  the  amounts  of  each  receipt,  the  precise 
nature  and  amount  of  services  rendered.  In  indebitatus  assumpsit, 
on  the  other  hand,  the  debt  being  laid  as  an  inducement  or  convey- 
ance to  the  assumpsit,  it  was  not  necessary  to  set  forth  all  the  de- 
tails of  the  transaction  from  which  it  arose.  It  was  enough  to 
allege  tlie  general  nature  of  the  indebtedness,  as  for  goods  sold,^ 
money  lent,^  money  paid  at  the  defendant's  request,^  money  had  and 
received  to  the  plaintiff's  use,^  work  and  labor  at  the  defendant's 
request,^  or  upon  an  account  stated,^  and  that  the  defendant  being 
so  indebted  promised  to  pay.  This  was  the  origin  of  the  common 
counts."     Ames,  History  of  Assumpsit,  2  Harv.  L.  Kev.  57. 


RUDDER   V.  PRICE. 

Extract. 

Eeported  1  Henry  Blackstoxe  at  551. 

Per  Loughborough.  "  The  history  of  the  action  of  assumpsit  given 
by  Lord  Coke  in  the  second  resolution  in  Slade's  Case  is  incorrect ; 
the  cases  which  he  there  cites  show  that  the  manner  in  which  the 
action  was  brought  prior  to  Slade's  Case  was  by  stating  not  a  gen- 
eral indebitatus  assurtvpsit,  for  it  was  not  brought  merely  on  a  prom- 
ise, but  special  damage  for  a  nonfeasance,  by  which  a  special 
action  on  the  case  arose  to  the  plaintiff."  ^ 

HARD'S    CASE. 

Ix  THE  King's  Bench.     1697. 

Reported  1  Salkeld,  23. 

Indebitatus  assumpsit  will  lie  in  no  case  but  where  debt  lies, 
therefore  it  lies  not  upon  a  wager,  nor  upon  a  mutual  assumpsit, 
nor  against  the  acceptor  of  a  bill  of  exchange ;  for  his  acceptance  is 

1  Hughes  V.  Rowbotham  (1592),  Poph.  .31;  Woodford  v.  Deacou  (1608);  Cro. 
Jac.  206;  Gardiner  v.  Belliugham  (1612),  Hob.  5;  1  Roll  R.  24,  s.  c. 

2  Rooke  r.  Kooke  (1610),  Cro.  Jac.  245;  Yelv.  175,  s.  c. 

3  Moore  v.  Moore  (1611),  1  Bulst.  169. 

*  Babingtoii  v.  Lambert  (1616),  Moore,  854. 

5  Russell  V.  Collins  (1669),  1  Sid   425;   1  Mod.  8;  1  Vent.  44;  2  Keb.  552,  s.  C. 

6  Brinsley  v.  Partridge  ( 1611 ),  Hob.  88;  Vale  y.  Egles  (1605),  Yelv.  70;  Cro.  Jac.  69. 
"  Accordingly,  in  the  case  of  20  Hen.  VIL  9,  as  cited  by  Fitz-James,  Dyer,  22  h,  the 

action  was  brouglit  for  the  special  damage  on  account  of  the  nonperformance  of 
the  contract  to  deliver  corn  to  the  plaintiff,  by  wliicli  he  was  obliged  to  buy  other 
corn  at  a  higher  price.     See  27  Hen.  VIIL  24-25;  20  Hen.  VIL  8;  12  Edw.  IV.  13. 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      237 

but  a  collateral  engagement.  But  it  lies  against  the  drawer  himself, 
for  he  was  really  a  debtor  by  the  receipt  of  money,  and  debt  would 
lie  asrainst  him. 


BOVEY   V.   CASTLEMAN. 

Ix  THE  King's  Bench.     1696. 

Eeported  Lord  Raymond,  69. 

Indebitatus  ass7impsit.  The  plaintiff  declares  that  there  was  an 
agreement  between  the  defendant  and  hira,  that  if  the  Duke  of  Savoy 
made  an  incursion  into  Dauphine  within  such  a  time,  that  then  the 
plaintiff  should  give  the  defendant  £100.  And  if  the  Duke  did 
not  make  the  incursion  into  Dauphine  within  the  time  limited,  that 
then  the  defendant  should  give  to  the  plaintiff  £100,  which  agree- 
ment was  reduced  into  writing  and  signed  by  both  the  parties  :  and 
the  plaintiff  avers  that  the  Duke  of  Savoy  did  not  make  any  incur- 
sion into  Dauphine  within  the  time  limited  ;  by  wdiich  the  defend- 
ant became  indebted  to  the  plaintiff  in  XI 00,  and  being  indebted 
assumed  to  pay,  etc.  Upon  non  assumpsit  pleaded,  verdict  for  the 
plaintiff.  And  now  Mr.  Northey  moved  in  arrest  of  judgment,  that 
there  was  not  any  consideration  to  raise  a  debt,  for  no  debt  can  arise 
between  the  plaintiff  and  defendant  upon  the  incursion  of  the 
duke.  For  it  is  but  a  wager,  for  which  indebitatus  assumpsit  will 
not  lie,  because  there  wants  a  real  consideration.  But  for  mutual 
promises  assumpsit  may  lie,  but  not  indebitatus  assumpsit.  For 
indebitatus  assumpsit  will  lie  only  in  cases  where  debt  will  lie,  but 
in  this  case  debt  cannot  lie.  Quod  fuit  consessum  per  totam  curiam. 
And  therefore  judgment  was  given  quod  querens  nil  capiat  per 
billarn. 

WALKER    V.   WALKER. 

In  the  King's  Bench.     1694. 

Reported  Holt,  328. 

Action  for  money  won  on  a  wager,  by  a  general  indebitatus  as- 
sumpsit ;  after  verdict,  counsel  moved  in  arrest  of  judgment,  for  that 
it  is  not  a  good  promise  in  law,  and  there  is  no  debt. 

Holt,  C.  J.  This  is  merely  a  wager,  and  no  indebitatus  assumpsit 
lies  for  it ;  for  to  make  that  lie,  there  must  be  work  done,  or  some 
meritorious  action  for  which  debt  lieth ;  and  here  this  wager  is  due 
in  a  collateral  respect.  It  is  true,  the  cast  of  a  die  alters  the  prop- 
erty, if  tli3  money  be  staked  down,  because  it  is  then  a  gift  on  con- 


238  CASES    ON    COMMOX-LAW   PLEADING. 

dition  precedent,  and  an  inclehitcdus  assumpsit  lies  against  him  that 
holds  the  wager,  for  it  is  a  promise  in  law  to  deliver  it  if  won.  After 
this  verdict,  if  it  could  be  any  ways  made  good,  we  would  do  it ;  but 
a  verdict  cannot  make  good  that  which  is  bad  in  law.  Let  it  stay ; 
we  will  consult  the  judges  in  tlie  Exchequer  Chamber.^ 

If  on  the  loss  of  the  wager,  the  defendant  had  promised  the  next 
day  to  pay  it,  yet  an  assumpsit  would  not  lie  thereon,  because  it 
wants  consideration,  it  being  but  executory. 

THE  EARL  OF  FALMOUTH  v.   PENROSE. 

Ix  THE  King's  Bench.     1827. 

Reported  6  Barnewall  and  Cresswell,  385. 

Indebitatus  assumpsit  will  lie  for  goods  and  chattels. 

This  was  an  action  of  assumpsit  brought  by  the  plaintiff,  to  try 
his  right  to  have  the  second-best  fish  out  of  the  cargoes  of  all  fish- 
ing boats  landing  in  a  certain  cove,  called  Senn  Cove,  in  the  county 
of  Cornwall,  in  respect  of  his  liability  to  keep  up  a  capstan  and  rope 
there  for  the  purpose  of  hauling  the  boats  out  of  the  sea.  The  dec- 
laration contained  several  special  counts  in  which  it  was  alleged  that 
the  plaintiff'  was  entitled  to  the  second-best  fish  of  all  sorts  of  fish. 
There  were  also  several  indebitatus  counts,  in  which  it  was  stated 
that  the  defendants  were  indebted  to  the  plaintiff  in  divers,  to  wit, 
100  fish  of  the  value  of  £10,  for  divers  tolls,  or  dues,  due  and  of 
right  payable  from  the  defendants  to  the  plaintiff,  on  and  in  respect 
of  the  defendants  having  before  then  used  and  enjoyed,  and  hav- 
ing had  the  liberty  and  privilege  of  using  and  enjoying  divers 
capstans,  machines,  windlasses,  and  ropes  of  the  plaintiff,  to  haul 
and  assist  in  the  hauling  of  divers  boats  of  the  defendants,  and  of 
divers  other  boats  which  the  defendants  had  used  on  the  beach,  to 
wit:  at,  etc.,  in  tlie  county  aforesaid ;  and  being  so  indebted,  etc. 
Plea,  general  issue.  At  the  trial  before  Gaselee,  J.,  at  the  summer 
assizes  for  the  county  of  Cornwall,  1826,  it  appeared  that  the  prac- 
tice had  been  for  the  owner  of  every  fishing  boat  landing  its  cargo 
in  Senn  Cove,  to  select  a  fish  for  himself,  and  for  the  plaintiff's 
agent  to  select  another,  which  fish  so  selected  was  rendered  to  the 
plaintiff.  But  it  was  doubtful  on  the  evidence,  whether  the  prac- 
tice had  been  to  render  the  second-best  fish  of  all  sorts  of  fish,  or 
only  the  second-best  fish  of  all  sorts,  pilchards  excepted  ;  and  that 

1  The  greater  number  of  the  judges  in  the  Exchequer  Chamber  disagreed  with 
Lord  Holt,  but  he  continued  to  hold  that  the  remedy  for  the  recovery  of  money  lost 
at  play  was  by  special  action  on  the  case.     Eggleton  v.  Lewin,  Holt,  330. 


THE  PAHENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      239 

question  was  finally  submitted  to  the  jury,  who  found  the  custom  to 
have  been  to  render  the  second-best  fish  of  all  sorts  of  fish,  pilchards 
excepted.  A  verdict  was  found  for  the  plaintiff  on  the  indebitatus 
counts,  but  leave  was  given  to  the  defendants  to  move  to  enter  a  non- 
suit, if  the  court  should  be  of  opinion  that  these  counts  were  not 
supported  by  the  evidence.  A  rule  nisi  having  been  obtained  for 
that  purpose,  R.  Bayley  and  Carter  now  showed  cause.^ 

C.  F.  Williams  and  Halcomb,  contra. 

Bayley,  J.  The  only  question  is,  whether  the  plaintiff  can  in  this 
case  recover  upon  a  general  indebitatus  count.  There  are  authori- 
ties to  show  that  debt  will  lie  for  a  chattel.  If  so,  we  see  no  reason 
why  assumpsit  will  not  also  lie,  but  then  the  promise  as  well  as  the 
consideration  must  be  proved.  Upon  the  evidence,  it  appears  that 
it  was  the  custom  for  the  plaintiff  or  his  agent  to  select  his  fish,  and 
that  the  selection  being  made,  the  same  was  rendered  to  him.  If, 
therefore,  the  defendant  had  refused  to  render  the  fish  so  selected, 
or  had  refused  to  let  the  plaintiff  select  one,  he  might  have  main- 
tained a  special  action  on  the  case  for  damages ;  but  there  was  no 
legal  liability  on  the  part  of  the  defendant  to  pay  any  given  fish  to 
the  plaintiff  before  selection,  and  consequently  nopromise  is  implied 
by  law  on  his  part  to  do  so.  The  plaintiff,  therefore,  has  failed  to 
prove  any  assumpsit  or  promise  on  the  part  of  the  defendant  to  ren- 
der fish.     The  rule  for  a  nonsuit  must  therefore  be  made  absolute. 

Holroyd  and  Littledale,  Js.,  concurred. 

Rule  absolute. 


HORATIO   N.    HOLBROOK   v.   DAVID   DOW.^ 

Supreme  Judicial  Court,  IVIassachusetts.     1861. 

Reported  1   Allex,  397. 

Indebitatus  assumpsit  lies  upon  a  special  contract,  so  far  executed  that 
naught  remains  but  the  payment  of  money. 

N.  Morse,  for  the  defendant. 

B.  Dean,  for  the  plaintiff. 

Hoar,  J.  It  is  a  familiar  principle  of  pleading  that  when  a  special 
contract  has  been  executed  so  far  that  nothing  remains  but  the  pay- 
ment of  money,  it  is  not  necessary  to  declare  upon  the  contract,  but 
a  count  in  indebitatus  assumpsit  will  be  sufficient.  2  Greenl.  Ev. 
§  104;  Felton  v.  Dickinson,  10  Mass.  287.  .  .  . 

The  defendant  was  the  plaintiff's  assignee  in  insolvency ;  and  the 

1  The  argumeuts  of  counsel  are  omitted. 

8  The  reporter's  statemeut  of  facts  aod  part  of  the  opiniou  are  omitted.  —  Ed. 


240  CASES   ON"    COMMON-LAW   PLEADING. 

plaintiff  testified  that,  in  consideration  that  he  would  procure  the 
settlement  of  a  suit  which  had  been  brought  against  him  by  one 
Coleman,  the  defendant  promised  to  obtain  the  assent  of  the  plain- 
tiffs creditors  to  his  discharge,  give  up  certain  account  books,  pay 
Coleman  $100,  and  pay  the  plaintiff  the  sum  of  $54,  the  same  being 
the  amount  of  an  allowance  which  the  plaintiff  claimed  the  commis- 
sioner had  decreed  to  him.  He  further  testified  that  he  did  procure 
the  settlement  of  the  suit,  and  tliat  the  defendant  performed  the 
contract  on  his  part,  except  the  payment  of  the  $54.  If,  then,  the 
jury  were  satisfied  that  the  promise  to  pay  the  $54  was  absolute  — 
to  pay  that  sum  of  money  in  consideration  of  the  settlement  of  the 
suit,  and  not  merely  to  pay  the  allowance  to  which  the  plaintiff  was 
entitled  from  his  estate  —  the  form  of  declaring  was  sufficient,  and 
there  was  no  variance  between  the  declaration  and  the  proof.  .  .  . 

Exceptions  overruled. 


JONES   V.  HOAR.^ 

Supreme  Judicial  Court  of  Massachusetts.    October,  1827 

Reported  5  Pickering,  285. 

One  cannot  waive  a  tort  and  sue  in  contract  unless  there  is  a  contract, 
express  or  implied,  between  the  parties. 

Assumpsit  upon  a  promissory  note,  for  goods  sold  and  delivered, 
and  for  money  had  and  received.  The  case  came  before  the  court 
upon  an  agreed  statement  of  facts. 

1  The  x\g\it  of  a  plaintiff  to  "  waive  the  tort  and  sue  in  contract "  is,  in  certain 
cases,  a  matter  of  dispute.  In  Centre  Turn  Pike  Co.  v.  Smith,  12  Vt.  212,  at  217,  Red- 
field,  J.,  says,  "  We  know  there  are  many  cases  in  which  a  person  is  virtually  made 
liable  in  assumpsit  for  a  tort.  But  those  cases  may  be  resolved  into  four  classes,  none 
of  which  include  the  present  [which  was  to  recover  toll  of  the  defendant  for  passing 
the  gate  on  the  plaindff's  turnpike,  in  Hancock].  1.  Where  the  defendant  has  taken 
personal  property  and  converted  it  into  money.  Gilmore  v.  Wilbur,  12  Pick.  120.  By 
Jackson,  J.,  in  Cummiugs  v.  Noyes,  10  Mass.  433.  By  Lord  jMansfield,  in  Hanibly  v. 
Trott,  Cowpor,  373.  But  in  these  cases  tlie  chattels  must  have  been  actually  converted 
into  money.  Such  is  the  language  of  the  books.  I  find  but  one  case  where  chattels 
have  been  taken  by  force,  and  not  converted  into  money,  that  assumpsit  has  beeu  sus- 
tained, and  that  case  rests  upon  no  very  satisfactory  basis.  Hill  v.  Davis,  3  N.  H.  386. 
[In  Hill  r.  Davis  the  facts  were  these  :  "  tlie  plaintiff,  in  the  summer  of  1816,  contracted 
to  underpin  the  defendant's  house  with  hewn  stone,  and  the  stones,  mentioned  in  the 
plaintiff's  declaration,  were  furnished  for  that  purpose.  But  it  being  found  that  the 
same  stones  would  not  answer  for  that  purpose,  tiiey  were  not  used,  but  were  left  near 
the  house  of  tlie  defendant  by  the  plaintiff,  until  the  fall  of  that  year,  when  the  defend- 
ant built  a  dairy,  and  put  into  it  the  same  stones.  In  the  fall  of  1817  tlicre  was  a  final 
settlement  between  the  parties  for  the  underpinning  of  the  house.  There  never  was 
auy  contract  for  the  sale  of  tliese  stones,  but  at  said  settlement,  Hill  said,  that  they 


THE  PAKENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      241 

Tlie  defendant  brought  a  sum  of  money  into  court  generally, 
"  on  account  and  in  satisfaction  of  the  plaintiff's  damages  in  the 
suit." 

were  taken  without  leave,  and  Davis,  that  they  were  worth  nothing."  Hill  brought 
assuinjjsit  against  Davis.  The  issue  was,  Had  Hill  misconceived  his  action  ?  The 
court  said.  No.  Per  Richardson,  C.  J.  "It  has  been  contended,  that  the  case  states 
that  there  was  no  contract,  and  that,  therefore,  we  are  not  at  liberty  to  say  tliere  was 
a  contract.  But  it  seems  to  us  that  we  are  bound  to  understand  by  that  admission 
that  there  was  no  express  contract,  and  not  that  there  was  no  contract  whatever. 
For  the  question  submitted  to  us  is,  whether  assumpsit  lies  on  the  facts  agreed ;  in 
other  words,  whether  there  was  any  contract,  express  or  implied,  on  which  assumpsit 
might  be  maintained  ;  and  an  admission  that  there  was  no  contract,  express  or  implied, 
amounts  to  an  admission  tliat  the  action  cannot  be  maintained."] 

"  2.  Wlien  tlie  defendant  obtains  the  goods  surreptitiously,  under  color  of  sale. 
Chitty  on  Contracts,  19;  Hill  v.  Prescott,  3  Taunt.  274;  Edmeads  v.  Newman,  8  E. 
C.  L.  116.  In  the-  latter  case,  the  defendant  came  fairly  by  tlie  bills,  but  fraudulently 
obtained  the  money  upon  them.  The  case  of  Clark  v.  Shee,  Cowper,  197,  is  of  the 
same  character. 

"3.  Where  one  employs  tlie  apprentice  of  another,  even  when  he  did  not  know  of 
the  apprenticeship,  he  is  liable  in  assumpsit  for  work  and  labor.  Lightly  v.  Clouston, 
1  Taunt.  112;  Bowes  v.  Tibliets,  7  Greenleaf's  R.  457.  See,  also,  Eades  v.  Vaudeput, 
5  East,  39,  which  involves  the  same  principle. 

"4.  Where  the  defendant,  under  false  color,  has  recovered  the  rent  of  plaintiff's 
estate.  2  S'arkie's  Ev.  (6th  ed.)  64,  and  cases  cited.  So,  also,  when  the  defendant 
has  intruded  into  plaintiff's  office  and,  under  color  of  right,  has  received  the  fees.     lb. 

"  But  I  find  no  case  where,  as  in  the  present,  tiie  defendant  is  guilty  of  no  tort,  and 
of  no  fraud,  and  claims  to  act  by  virtue  of  a  legal  right,  and  that  claim  is  recognized, 
at  least  pro  hue  vice,  that  the  party  has  subsequently  been  made  liable,  in  assumpsit,  as 
on  an  implied  contract." 

Per  Dixon,  C.  J.,  in  Norden  v.  Jones,  33  Wis.  600,  at  605  :  "  Judge  Redfield,  in  Centre 
Turn  Pike  Co.  v.  Smith,  12  Vt.  217,  resolves  the  cases  coming  within  the  narrower 
rule  into  four  classes,  to  which  the  case  of  Jones  v.  Hoar,  5  Pick.  290,  adds  a  fifth  class 
not  named  by  .Judge  Redfield." 

The  right  to  waive  tlic  tort  and  sue  in  contract  is  well  summarized  by  former  Chief 
Justice  Jonatiuxn  Ross  of  the  Supreme  Court  of  Vermont,  in  his  article  on  "  Assump- 
sit," 4  Cyc.  of  Law  and  Proc.  331. 

1.  "  Plaintiff's  right  to  elect  between  an  action  of  tort  and  assum])sit  cannot  be  used 
wlieu  it  will  ileprive  defendant  of  a  substantial  right  or  defence.  Isaacs  v.  Hermann, 
49  .Miss.  449  ;  Einlay  v.  Bryson,  84  Mo.  664 ;  Sedgebeer  v.  Moore,  Brightly  (Pa.),  197. 

2.  "  Where  a  contractual  relation  exists  between  the  parties,  such  as  that  of  agent 
and  principal,  attorney  and  client,  or  bailee  and  bailor,  a  tort  arising  out  of  the  duty 
imposed  by  tlie  relation  may  be  waived,  and  special  assumpsit  maintained. 

3.  "An  infant  tortiously  converting  property  cannot  plead  his  infancy  in  bar  when 
sued  in  assumpsit. 

4.  "  All  the  authorities  agree  that,  where  personal  property  is  tortiously  taken  and 
converted  into  money  or  money's  worth,  the  owner  may  waive  the  tort  and  sue  the 
wrong-doer  in  assumpsit  for  its  value.  The  authorities  differ,  however,  as  to  the  right 
of  the  owner  to  sue  in  assumpsit  where  the  wrong-doer  has  not  sold  or  otherwise  dis- 
])osed  of  the  property,  but  retains  it  for  his  own  use.  One  line  of  decisions  denies  tlie 
right  to  bring  an  action  of  assumpsit  in  such  case."  Jones  v.  Hoar,  5  Pick.  285  ;  Berk- 
.shire  Glass  Co.  v.  Wolcott,  2  Allen,  227  ;  Brown  v.  llolbrook,  4  Gray,  102;  Cooper  c. 
Cooper,  147  Mass.  370;  as  well  as  repeatedly  affirmed  decisions  in  Alabama,  Arkansas, 
Georgia,  Illinois,  Kentucky,  Maine,  Michigan,  New  Ilampsliire,  New  York,  North 
Carolina,  Pennsylvania,  and  Vermont.     See  Ross,  Assuni])sit,  4  Cyc.  Law  and  Proc.  334. 

Jones  V.  Hoar  has  been  repeatedly  reaffirmed  in  Massachusetts.     Thus  in  Cooper  v, 

16 


242  CASES   ON   COMMON-LAW   PLEADING. 

The  cause  of  action  upon  which  the  count  for  goods  sold  was 
founded  was,  that  the  defendant  had  entered  upon  the  plaintiff's 
land  and  cut  and  carried  away  a  quantity  of  white  oak  timber. 

Cooper,  147  Mass.  370  [1888],  A.  went  throuj^h  a  form  of  marriage  with  X.  and  lived 
■with  him  as  his  wife  for  many  years,  performing  all  the  duties  of  that  relation,  and 
after  his  death  learned  for  the  first  time  that  he  had  a  wife  living  and  not  divorced 
from  him.  A.  sought  to  recover  for  her  services  as  housekeeper  under  an  implied  con- 
tract with  the  intestate.  Per  W.  Allen,  J.  "  The  same  act  or  transaction  may  consti- 
tute a  cause  of  action  both  in  contract  and  in  tort,  and  a  party  may  have  an  election 
to  pursue  either  remedy.  In  that  case  he  may  be  said  to  waive  the  tort  and  sue  in 
contract.  But  a  right  of  action  in  contract  cannot  be  created  by  waiving  a  tort,  and 
the  duty  to  pay  damages  for  a  tort  does  not  impjy  a  promise  to  pay  them,  upon  which 
assumpsit  can  be  maintained.  Jones  v.  Hoar,  5  Pick.  285  ;  Brown  v.  Holbrook,  4  Gray, 
102;  Pergu.son  v.  Carrini;ton,  9  B.  and  C.  59.  See,  also.  Met.  Con.  9, 10  ;  1  Chit.  Con. 
(11  Am.  ed.)  87;  Earle  v.  Coburne,  139  Mass.  596;  Milford  v.  Commonwealth,  144 
Mason,  64."  Willett  v.  Willett,  3  Watts,  277  ;  Morrison  v.  Rogers,  3  111.  317;  McKnight 
V.  Dunlop,  4  Barb.  36,  42,  accord. 

But  in  every  case  where  a  plaintiff  fails  because  he  has  misconceived  his  action, 
substantive  rights  are  defeated  by  procedural  technicalities,  and  injustice  is  wrought. 
Hence  we  may  well  question  whether  law  productive  of  habitual  injustice  is  founded 
on  sound  theory.  That  the  rule  of  Jones  v.  Hoar  illustrates  a  case  of  substantive  right 
defeated  by  procedural  technicality,  none  will  venture  to  deny. 

lu  Xorden  v.  Jones,  33  Wis.  600,  the  court  considered  and  overturned  the  doctrine 
of  .Jones  r.  Hoar,  upon  the  very  ground  suggested.  Per  Dixon,  C.  J.  "The  question 
presented  on  the  rejection  of  the  $6.00  item  is  an  interesting  one,  upon  which  there 
exists  considerable  contrariety  of  opinion  and  decision,  both  in  England  and  this  coun- 
try. It  was  a  charge  of  that  sum  made  by  the  defendant  [in  the  nature  of  set-off] 
against  the  plaintiff  for  pasturing  the  plaintiff's  cattle,  which  the  defendant  testified 
the  plaintiff  had  let  into  his,  the  defendant's  field,  by  laying  down  defendant's  fence 
for  that  purpo-^e.  The  objection  sustained  by  the  justice  was,  that  the  laying  down 
of  the  fence  and  turning  in  of  the  cattle  was  a  trespass  on  the  part  of  the  plaintiff, 
which  could  not  be  brought  in  or  proved  as  a  set-off  or  cross  demand  in  this  form  of 
action  [contract]  but  that  the  defendant  must  resort  to  his  action  of  trespass  against 
the  plaintiff  to  recover  the  damages  which  he  has  sustained.  .  .  . 

''  The  underlying  question  in  all  the  cases  obviously  is.  When  and  under  what  cir- 
cumstances will  the  law  imply  a  promise  on  the  part  of  the  defendant  to  pay  ?  '  It  is 
a  principle  well  settled,' say  the  court,  in  Webster  v.  Drinkwater,  5  Greenl.  322,  'that 
a  promise  is  not  implied  against  or  without  the  consent  of  the  person  attempted  to 
be  charged  by  it.  And  where  one  is  implied,  it  is  because  the  party  intended  it  should 
be,  or  because  natural  justice  plainly  requires  it,  in  consideration  of  some  benefit  re- 
ceived.' Tested  by  the  latter  as  the  governing  principle,  upon  which  the  law  raises 
a  promise  to  pay,  it  is  very  obvious  that  the  more  liberal  rule  is  the  correct  one,  and 
that  which  should  prevail.  .  .  .  Apart  from  all  reasoning  of  a  technical  or  artificial 
character,  and  looking  to  the  substantial  ends  of  justice,  it  is  quite  difficult  to  see  why 
this  principle  should  not  be  applied  in  cases  like  Jones  v.  Hoar,  and  Willett  v  Willett, 
supra.  In  neither  could  the  defendant  have  been  prejudiced  by  allowing  the  plaintiif 
to  sue  in  as.-iumpsit ;  on  tlie  contrary,  the  practice  generally  operates  to  favor  the 
defendant,  as  the  plaintiff  thereby  foregoes  his  right  to  damages  for  the  tort  as  such, 
and  restricts  himself  to  tlie  simple  value  of  the  property."     Judgment  reversed. 

California,  Kansas,  Mississippi,  Missouri,  Montana,  North  Dakota,  Oregon,  and  Ten- 
nessee accord  with  Wisconsin  in  overturning  the  doctrine  of  .Jones  v.  Hoar.  See 
Ross,  Assumpsit,  4  Cyc.  Law  and  Proc.  334.  I'erhaps  we  can  do  no  better  than  to  close 
with  the  words  of  Tindal,  C.  J.,  in  Young  v.  Marshall,  8  Bing.  43  :  "  No  party  is  bound 
to  sue  in  tort,  where,  bj'  converting  the  action  into  an  action  of  contract,  he  does  not 
prejudice  the  defendant."     This,  we  believe,  is  the  better  rule. 


THE   PARENT   OF   CASE,  TROVER,   AND   ASSUMPSIT.  243 

And  the  question  was  argued  (in  writing)  whether  the  plaintiff 
could  waive  the  tort  and  sue  in  assumpsit,  it  not  appearing  that  the 
timber  had  been  sold  by  the  defendant.  Nothing  was  said  in  the 
argument,  nor  at  the  trial  in  the  court  below,  of  the  effect  of  bring- 
ing money  into  court  in  the  manner  above  mentioned. 

At  October  Term,  1826,  the  court  observed,  that  by  the  statement 
of  facts  they  were  to  decide  upon  the  legal  effect  of  bringing 
money  into  court  under  the  rule  in  this  case  ;  and  they  suggested 
whether  it  was  not  an  admission  of  all  the  contracts  set  forth  in  the 
declaration. 

The  counsel  for  the  defendant  then  said,  that  it  was  not  so  con- 
sidered in  this  county;  that  the  money  in  the  present  case  was 
intended  to  be  applied  to  the  promissory  note ;  that  the  whole 
controversy  respected  the  timber;  but  if  it  was  necessary  to  specify 
the  counts  on  which  the  money  was  brought  in,  he  would  move 
for  leave  to  amend  the  rule.  Stoveld  v.  Brewin,  2  B.  &  A.  116; 
Mellish  V.  Allnutt,  2  M.  &  S.  106  ;  Muller  v.  Hartshorne,  3  B.  &  P. 
556. 

The  opposite  counsel  referred  to  3  Stark.  Ev.  1397,  cites  3  Taunt. 
95,  and  Peake's  Cas.  15. 

Fe7'  curiam.  It  is  clear,  both  from  authority  and  upon  principle, 
that  the  defendant  should  have  specified  on  what  count  he  brought 
in  the  money.  But  under  the  circumstances  of  this  case  he  may  be 
entitled  to  relief. 

The  opinion  of  the  court  was  delivered,  at  this  term,  by 

Parker,  C.  J.  The  plaintiff  declares  in  assumpsit,  and  one  count 
is  for  goods  sold  and  delivered.  By  the  agreement  it  appears,  that 
the  only  ground  for  supporting  this  count  is,  that  the  defendant 
cut  and  took  away  certain  trees  from  land  claimed  by  the  plaintiff, 
and  for  the  purpose  of  the  argument,  actually  owned  by  him.  Tlie 
proper  action  would  undoubtedly  be  trespass  for  the  injury  to  the 
land,  or  trover  for  the  trees.  But  the  plaintiff  contends  that  he 
has  a  right  to  waive  the  tort,  and  cliarge  the  defendant  with  the 
trees  as  sold  to  him.  Upon  examination  of  the  authorities  cited, 
which  are  well  summed  up  and  commented  upon  by  Strong,  J.,  in 
the  opinion  of  the  Court  of  Common  Pleas,  we  are  satisfied  that  the 
plaintiff  cannot  maintain  this  position.  There  is  no  contract  ex- 
press or  implied  between  the  parties,  and  therefore  an  action 
ex  contractu  will  not  lie.  The  whole  extent  of  the  doctrine,  as 
gathered  from  the  books,  seems  to  be,  that  one  whose  goods  have 
been  taken  from  him  or  detained  unlawfully,  whereby  he  has  a 
right  to  an  action  of  trespass  or  trover,  may,  if  the  wrong-doer  sell 
the  goods  and  receive  the  money,  waive  the  tort,  affirm  the  sale,  and 


244  CASES    ON    COMMON-LAW   PLEADING. 

have  an  action  for  money  had  and  received  for  the  proceeds.  No 
case  can  be  shown  where  assumpsit  as  for  goods  sold  lay  in  such 
case,  except  it  be  against  the  executor  of  the  wrong-doer,  the  tort 
being  extinguished  by  the  death,  and  no  other  remedy  but  assump- 
sit against  the  executor  remaining.  Such  was  the  case  of  Hambly 
V.  Trott,  referred  to  in  Judge  Strong's  opinion. 

But  the  defendant  paid  money  into  court,  under  a  rule,  and  did 
not  distinguish  as  to  which  of  the  counts  the  payment  was  appli- 
cable. And  this,  by  the  authorities,  is  an  admission  of  the  con- 
tract as  set  forth  in  the  declaration.  Bennett  v.  Francis,  2  B.  & 
P.  550.  It  is,  however,  considered  as'within  the  discretion  of  the 
court  to  apply  this  rule  or  not,  as  equity  shall  require  ;  for  it  may 
happen  that  by  mere  inadvertency,  where  there  are  several  counts, 
a  general  tender  is  made,  when  it  is  intended  only  to  be  made  to 
one  or  more,  but  not  to  all  the  counts.  In  the  case  before  us  there 
is  a  count  upon  a  promissory  note,  and  we  have  been  satisfied  that 
it  was  meant  that  the  money  paid  should  be  apphed  to  that  count 
only,  a  litigation  in  regard  to  the  price  claimed  for  trees,  and  the 
right  of  action  in  relation  to  them,  being  always  intended.  So 
it  was  considered  by  the  Court  of  Common  Pleas,  who  gave  judg- 
ment without  any  reference  whatever  to  the  tender,  their  attention 
not  having  been  called  to  it  by  the  counsel.  We  think  therefore 
the  defendant  ought  to  be  relieved  from  the  effect  of  an  admission 
which  is  the  technical  result  of  bringing  money  into  court  in  the 
form  used  in  this  case.     Leave  is  granted  to  amend  the  rule. 

jMills,  Ashmun,  and  Miles,  for  the  plaintiff. 

Bigelow,  for  the  defendant. 

In  these  few  chapters,  we  have  traced  the  origin  and  evo- 
lution of  the  several  personal  actions.  We  have  observed, 
by  inference  rather  than  by  direct  statement,  that  the  sub- 
stantive law  of  England  was  remorselessly  fettered  by  iron 
strong  rules  of  procedure.  In  the  beginning,  when  the 
Statute  of  Westminster  II.  became  law,  a  liberal  interpre- 
tation would  have  resulted  in  an  approximately  just  system 
for  the  protection  of  rights,  without  any  separate  tribunal 
of  equity.  The  Chancery  clerks  framed  liberal  writs,  in 
the  broad  spirit  of  the  Roman  law,  but  the  common-law 
judges  crushed  them.  A  man  might  have  a  right,  but  it 
was  useless  to  him  unless  he  had  a  remedy  to  vindicate  it. 
For  a  time  it  seemed  that  the  intolerable  situation  was 


THE  PARENT  OF  CASE,  TROVER,  AND  ASSUMPSIT.      245 

growing  hopeful.  Lord  Holt's  famous  sentiment  in  Asliby 
V.  White,  "  Where  there  is  a  right  there  is  a  remedy  to  en- 
force that  right ; "  Lord  Mansfield's  words  in  Bird  v.  Ran- 
dall, "  An  action  on  the  case  is  in  the  nature  of  a  bill  in 
equity,  and  in  effect  is  so,"  —  certainly  gave  promise  of  a 
bursting  of  the  fetters.  But  the  liberal  view  did  not,  as 
w^e  have  seen,  prevail.  Lord  Holt  was  a  narrow  man,  but 
a  great  lawyer  ;  Lord  Mansfield  was  a  broad  man  and  a 
great  lawyer;  both  were  sufficiently  developed  jurists  to 
realize  the  injustice  of  the  unyielding  forms  which  were 
the  characteristic  feature  of  the  law  they  expounded  ;  both 
sought  to  right  the  wrong ;  both  failed. 

The  reason  for  this  failure  is  not  hard  to  find.  It  was 
the  unyielding  system  of  procedure.  Equity  courts  and 
common-law  courts  each  had  their  Respective  jurisdictions, 
though  the  boundary  line  between  them  was  thrust  now 
this  way,  now  that,  in  a  battle  of  intellects  for  the  acquisi- 
tion of  the  neutral  ground.  Each  had  its  peculiar  processes 
for  defeating  the  other.  Where  a  plaintiff  had  a  complete, 
adequate  remedy  at  law,  he  must  keep  out  of  equity.  But 
where  a  defendant,  successfully  proceeded  against  in  a  court 
of  law,  could  searcli  out  for  himself  requisite  equitable 
relief,  the  equity  court  would  enjoin  the  victorious  plaintiff 
from  the  fruits  of  his  victory.  It  followed,  then,  that  an 
action  on  the  case  was  not,  "  in  effect,  a  bill  in  equity." 
Had  the  words  of  Lord  Mansfield  become  settled  law,  tlie 
jurisdiction  of  courts  of  equity  and  courts  of  law  would 
have  become  concurrent,  and  many  anomalies  have  been 
averted.  As  it  was,  the  distinction  between  law  and  equity 
was  preserved ;  and  this  through  the  procedure  by  which 
the  substantive  wrong  in  each  was  redressed. 


CHAPTEK   IV. 

TRIALS. 

Nowhere,  so  much  as  in  the  more  ancient  modes  of  trial, 
do  we  find  the  real  recison  for  the  inadequacy  of  common- 
law  relief.  What  the  ancient  forms  of  trials  were ;  what 
specific  forms  of  trials  prevailed  in  and  were  peculiar  to  the 
several  actions ;  and  what  injustice  these  forms  wrought,  — 
may  be  seen  in  the  following  pages.  A  study  of  these  an- 
cient modes  of  trial  can  hardly  fail  to  impress  the  student 
with  the  extent  to  which  ancient  procedure  has  dwarfed 
our  modern  law,  and  warped  not  only  the  modern  legal, 
but  the  modern  social  and  financial,  world  as  well. 

OLDEE   MODES   OF   TRIALS  AT   THE   COMMON   LAW. 

Trial  by  Ordeals  and  Oaths. 

1.    Ordeals. 

First,  of  ordeals.  "  The  old  modes  of  proof  might  he  reduced 
to  two,  ordeals  and  oaths ;  both  were  appeals  to  the  supernatural. 
The  history  of  ordeals  is  a  long  chapter  in  the  history  of  mankind ; 
we  must  not  attempt  to  tell  it.  Men  of  many,  if  not  all  races,  have 
carried  the  red-hot  iron  or  performed  some  similar  feat  in  proof  of 
their  innocence.  In  Western  Europe,  after  the  barbarian  invasions, 
the  Church  had  adopted  and  consecrated  certain  of  the  ordeals  and 
had  composed  rituals  for  them.  Among  our  own  forefathers  the 
two  most  fashionable  methods  of  obtaining  a  indicium  Dei  were  that 
which  adjured  a  pool  of  water  to  receive  the  innocent  and  that 
which  regarded  a  burnt  hand  as  proof  of  guilt.  Such  evidence  as 
we  have  seems  to  show  that  the  ordeal  of  hot  iron  was  so  arranged 
as  to  give  the  accused  a  considerable  chance  of  escape.  In  the 
England  of  the  twelfth  century  both  of  the  tests  that  we  have 
mentioned  were  being  freely  used  ;  but  men  were  beginning  to 
mistrust  them.  Eufus  had  gibed  at  them.  Henry  II.  had  declared 
[and   in    the    note  appended  the  writer    quotes  his  words]  that 


TRIALS.  247 

when  an  indicted  man  came  clean  from  the  water,  he  was  none  the 
less  to  abjure  the  realm,  if  his  repute  among  his  neighbors  was  of 
the  worst.^ 

"Then  came  a  sudden  change.  The  Lateran  Council  of  1215 
forbade  the  clergy  to  take  part  in  the  ceremony.  Some  wise  church- 
men had  long  protested  against  it,  but  perhaps  the  conflict  with 
flagrant  heresy  and  the  consequent  exacerbation  of  ecclesiastical 
law  had  something  to  do  with  its  suppression.  In  England  this 
decree  found  a  prompt  obedience  such  as  it  hardly  found  elsewhere  ; 
the  ordeal  was  abolished  at  once  and  forever.  Flourishing  in  the 
last  records  of  Jolin's  reign,  we  cannot  find  it  in  any  later  rolls. 
Our  criminal  procedure  was  deprived  of  its  handiest  weapon ;  but 
to  this  catastrophe  we  must  return  hereafter."  2  Pollock  and 
Maitland,  596. 

2.    Oaths. 

Second,  of  oaths.  "  It  is  called  wager  of  law,  because  of  ancient 
time  he  put  in  surety  to  make  his  law  at  such  a  day ;  and  it  is  called 
making  of  his  law,  because  the  law  doth  give  such  a  special  benefit 
to  the  defendant,  to  bar  the  plaintiff  forever  in  that  case."  Co. 
Litt.  294  &,  295  a;  3  Blackstone's  Commentaries,  341;  confer 
Stephen  on  Pleading,  Andrew's  first  edition,  481. 

"  The  substance  of  the  plaintiff's  claim  as  set  forth  in  the  writ  of 
debt  is  that  the  defendant  owes  him  so  much  and  wrongfully  with- 
holds it.  It  does  not  matter,  for  a  claim  framed  like  that,  how  the 
duty  arises.  It  is  not  confined  to  contract.  It  is  satisfied  if  there 
is  a  duty  to  pay  on  any  ground.  It  states  a  mere  conclusion  of 
law,  not  the  facts  upon  which  that  conclusion  is  based,  and  from 
wliich  the  liability  arises.  The  old  German  complaint  was,  in  like 
manner,  *  A.  owes  me  so  much.' 

"  It  was  characteristic  of  the  German  procedure  that  the  defendant 
could  meet  the  complaint  by  answering,  in  an  equally  general  form, 
that  he  did  not  owe  the  plaintiff.  The  plaintiff  had  to  do  more  than 
simply  allege  a  debt,  if  he  would  prevent  the  defendant  from  escap- 
ing in  that  way.  In  England,  if  the  plaintiff  had  not  something 
to  show  for  his  debt,  the  defendant's  denial  turned  him  out  of 
court ;  and  even  if  he  had,  he  was  liable  to  be  defeated  by  the  de- 
fendant's swearing  with  some  of  his  friends  to  back  him  that  he 

1  "  Et  qui  invenictur  per  sacramentum  proedictorum  rettatus  vel  puhlicatus  quod 
fuerit  robator  vel  niurdrator  vel  latro  vel  rece[)tor  eorum,  postquam  doininus  rex  fuit 
rex,  capiatur  et  est,  ad  jirisam  aqucE,  et  jure  quod  ipse  non  fuit  robator  vel  niurdra- 
tor vel  latro  vel  receptor  eorum  postquam  dominus  rex  fuit  rex,  de  valeutia  v.  soli- 
dorum  quod  sciat."    Assize  of  Clarendon,  2  ;  Stubbs,  Select  Charters,  143. 


248  CASES    ON    COMMON-LAW   PLEADING. 

owed  nothing.  The  chief  reason  why  debt  was  supplanted  for 
centuries  by  a  later  remedy,  assumpsit,  was  the  survival  of  this  relic 
of  early  days."     Holmes,  Common  Law,  252. 


KING  V.  WILLIAMS. 
In  the  King's  Bench.     1824. 
Eeported  2  Barnewall  and  Cresswell,  538. 
In  1824,  trial  by  wager  of  law  still  existed  in  England. 

Debt  on  a  simple  contract.  Defendant  pleaded  nil  debet  per  legem  ; 
and  the  master  having  appointed  a  day  for  the  defendant  to  come 
into  court  with  his  compurgators, 

Langslow  applied  to  the  court  to  assign  the  number  of  compur- 
gators, with  whom  the  defendant  should  come  to  perfect  his  law. 
The  books  leave  it  doubtful  whether  six  or  eleven  are  necessary.  In 
Les  Terms  de  la  Ley,  p.  442  (which  book  is  ascribed  to  Rastall,  by  the 
preface  to  10  Co.,  and  is  there  mentioned  as  a  work  of  high  estima- 
tion), is  this  passage  :  "  Mes  quant  un  gagera  son  ley,il  amesnera 
ovesque  lui,  6,  8,  or  12  de  ses  vicines  come  le  court  lui  assignera  de 
jurer  ovesque  lui."  [Bayley,  J.  Is  it  not  said  in  Blackstone's  Com. 
that  eleven  are  necessary  ?  ^]  It  is,  but  his  opinion  is  founded  on 
Co.  Lit.  295,  and  2  Inst.  45,  and  the  authorities  there  cited,  viz. 
Fleta,  b.  2,  c.  63,  and  33  Hen.  YI.  8,  do  not  support  the  position. 
In  Fleta  it  is  stated,  that  the  number  of  compurgators  shall  depend 
upon  the  number  of  the  seda,  produced  by  the  plaintiff;  that  is  to 
say,  if  the  secta  consist  of  two,  the  compui^ators  shall  be  four,  and  so 
on,  the  compurgators  being  double  the  number  of  the  secta,  until  the 
secta  shall  amount  to  six,  when  it  will  not  be  necessary  for  the  com- 
purgators to  double  their  number,  but  eleven  will  be  sufficient ;  and 
the  assertion  in  the  Year  Book  before  mentioned,  that  the  tenant 
shall  make  his  law  de  duodecimo  manu,  that  is  to  say,  eleven  by  him- 
self, is  merely  by  counsel  in  argument.  In  an  anonymous  case  in 
2  Yentr.  [171]  it  is  stated  that  less  than  eleven  compurgators  will 
do.  In  Styles'  Practical  Eegister,  p.  572,  it  is  said  of  wager  of  law, 
"  He  that  is  to  do  it,  must  do  it  diiodeno  manu,  viz.  he  must  bring 
six  compurgators  with  him, the  defendant  then  swears  de  fidelitate, 
the  compurgators  de  credulitate."  This  species  of  defence  is  not 
often  heard  of  now,  but  in  Barry  v.  Robinson  [1  Xew  Reports,  191] 
the  court  denied  that  a  wager  of  law  would  now  be  disallowed. 
Abbott,  C.  J.  The  court  will  not  give  the  defendant  any  assistance 

1  Vol.  III.  343. 


TRIALS.  249 

in  this  matter.  He  must  bring  such  number  of  compurgators  as  he 
shall  be  advised  are  sutficient.  If  the  plaintiff  is  not  satisfied  with 
the  number  brought,  the  objection  will  be  open  to  him,  and  then  the 
court  will  hear  both  sides.  Rule  refused. 

The  defendant  prepared  to  bring  eleven  compurgators,  but  the 
plaintiff  abandoned  the  action.^ 


3  and  4  gulielmi  iv. 
Cap.  XLII. 

An  act  for  the  further  amendment  of  the  law,  and  the  better 
advancement  of  justice.     [14  August,  1833.] 

XIII.  And  be  it  further  enacted,  that  no  wager  of  law  shall  be 
hereafter  allowed. 

Trial  by  Battle. 
ASHFORD   V.   THORNTON. 
In  the  King's  Bench.     1818. 
Reported  1  Barxewall  and  Alderson,  405. 

[The  case  as  here  reported  is  greatly  abridged.  The  full 
report  may  be  examined  by  the  reader  with  profit.  But 
the  importance  of  the  case,  as  illustrating  a  limitation 
which  procedure  was  imposing  upon  substantive  law  well 
into  the  nineteenth  century,  will  plainly  appear  here.] 

Trial  by  battle  might,  by  the  late  common  law,  be  wa?ed  by  the  appellee 
in  an  appeal  of  death,  in  the  absence  of  undeniable  proof  of  his  guilt. 

In  the  King's  Bench  Michaelmas  Term,  58  G.  3,  Abraham 
Thornton  was  attached  to  answer  W.  Ashford,  who  was  the  eldest 
brother  and  is  the  heir  of  Mary  Ashford  deceased,  of  the  death 
of  the  said  Mary  Ashford,  and  thereupon  the  said  W.  Ashford  in 
his  own  proper  person  appealeth  Abraham  Tliornton,  etc.  For 
that  he  the  said  Abraham  Thornton  not  having  the  fear  of  God  be- 
fore his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
Devil,  on  the  27th  day  of  May,  in  the  57th  year  of  the  reign  of  our 
sovereign  lord  George  the  Third,  by  the  grace  of  God,  etc.,  with  force 
and  arms  at  the  parish  of  Sutton  Coldfield  in  the  county  of  War- 

^  The  above  case  is  au  example  of  the  injustice  wrought  by  commou-law  procedure 
upon  substantive  rights. 


250  CASES    ON   COMMON-LAW   PLEADING. 

wick,  in  and  upon  the  said  Mary  Asliford,  spinster,  in  the  peace  of 
God  and  our  said  lord  the  king,  then  and  there,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  make  an  assault,  and  that 
the  said  Abraham  Thornton  then  and  there  feloniously  and  wil- 
fully, and  of  his  malice  aforethought,  did  take  the  said  Mary  Ash- 
ford  into  both  his  hands,  and  did  then  and  there  feloniously,  wilfully, 
violently,  and  of  his  malice  aforethought,  cast,  throw,  and  push  the 
said  Mary  Ashford  into  a  certain  pit  of  water,  wherein  there  was 
then  a  great  quantity  of  w^ater,  situated  in  the  parish  of  Sutton 
Coldfield  aforesaid  in  the  county  aforesaid,  by  means  of  which  said 
casting,  throwing,  and  pushing  of  the  said  Mary  Ashford  into  the 
pit  of  water  aforesaid  by  the  said  A.  Thornton  in  form  aforesaid, 
she,  the  said  M.  Ashford,  in  the  pit  of  water  aforesaid  with  the 
water  aforesaid,  was  then  and  there  choked,  suffocated,  and  drowned, 
of  which  said  choking,  suffocating,  and  drowning  she,  the  said  M. 
Ashford,  then  and  there  instantly  died.  And  so  the  said  A.  Thorn- 
ton her  the  said  Mary  Ashford  in  form  aforesaid  feloniously  and 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder  against 
the  peace  of  our  said  lord  the  king  his  crown  and  dignity.  And  if 
the  said  A.  Thornton  will  deny  the  felony  and  murder  aforesaid,  as 
aforesaid  charged  upon  him,  then  the  said  W.  Ashford,  who  was  the 
eldest  brother  and  is  the  heir  of  the  said  Mary  Ashford  deceased, 
is  ready  to  prove  the  said  felony  and  murder  against  him  the  said 
A.  Thornton  according  as  the  court  here  shall  consider  thereof,  and 
hath  found  pledges  to  prosecute  his  appeal. 

Witness  WILLIAM    ASHFOED, 
his  X  mark. 

Clarke  then  moved  that  the  appellee  be  required  to  plead. 

Eeader,  who  with  Eeynolds  and  Tindal  appeared  for  the  appellee, 
applied  for  time.  The  court  by  consent  granted  time  till  Monday, 
Nov.  16. 

Eeader  then  applied  for  copies  of  the  original  writ,  the  return 
thereto,  and  the  count,  which  the  court  refused,  but  desired  Mr. 
Barlow  to  read  over  the  two  former,  and  Mr.  Leblanc  to  read  over 
the  latter,  slowly  in  court,  which  was  done. 

Nov.  16.  The  appellee  being  brought  into  court  and  placed  at 
the  bar,  and  the  appellant  being  also  in  court,  the  count  was  again 
read  over  to  him,  and  he  was  called  upon  to  plead.  He  pleaded  as 
follows  :  "  Not  guilty ;  and  I  am  ready  to  defend  the  same  by  my 
body."  And  thereupon  taking  his  glove  off,  he  threw  it  upon  the 
floor  of  the  court. 

Clarke  then  applied  to  the  court  for  time. 


TRIALS.  251 

Lord  Ellenborough.  Do  you  apply  for  time  generally,  or  for 
time  to  counterplead? 

Clarke  stated  that  he  applied  for  time  to  counterplead. 

The  court  then  gave  time  till  Saturday,  Nov.  21,  to  counterplead  ; 
Eeader  for  the  appellee  consenting  to  it. 

Nov.  21.  The  parties  appearing,  the  defendant  delivered  in  his 
counterplea,  which  he  verified  by  his  affidavit,  and  the  same  was 
read  by  Mr.  Leblanc. 

[The  counterplea  set  forth  strong  circumstantial  evidence  point- 
ing to  the  guilt  of  the  appellee.  To  this  there  was  a  general 
demurrer  and  joinder  therein.] 

Abbott,  J.  I  am  of  the  same  opinion,  that  this  counterplea  is 
not  sufficient  to  oust  the  appellee  of  his  wager  of  battel.  The 
appeal  seems  to  have  been  in  its  origin  a  challenge,  and  the 
party  accused  was  allowed  to  wage  his  battel,  unless  in  certain 
excepted  cases  :  as,  for  instance,  where  the  appellant  was  an  infant, 
or  maimed,  or  above  sixty  years  of  age,  or  a  woman;  and  perhaps  it 
was  for  this  amongst  other  reasons  that  a  woman  was  allowed  to 
appeal  only  in  one  case,  namely,  that  of  the  death  of  her  husband. 
So  in  the  case  of  an  approver,  if  the  person  claiming  to  be  so  was  a 
woman,  an  infant,  maimed,  or  above  sixty,  he  was  not  allowed  to  be 
an  approver,  and  for  this  reason,  that  in  such  cases  the  defendant 
would  lose  his  wager  of  battel.  2  Hales  P.  C.  233.  This  shows 
the  nature  of  this  proceeding,  as  being  in  its  origin  a  challenge,  and 
that  the  battel  was  the  right  of  the  appellee  at  his  election,  unless 
certain  exceptions  existed.  Then  has  this  appellant  brought  himself 
within  any  of  those  exceptions  which  entitle  him  to  decline  the 
wager  of  battel  ?  It  is  said  that  he  has  done  so  by  pleading  a  vio- 
lent presumption  of  guilt  against  the  appellee.  Now,  as  to  this  the 
rule  is  to  be  found  in  Bracton.  The  presumption  must  be  strong 
and  vehement,  so  as  not  to  admit  of  denial,  or  proof  to  the  con- 
trary. It  must  be  strong,  vehement,  and  incapable  of  contradiction 
that  the  court  might  be  warranted  in  ordering  execution  thereon. 
It  is  not  necessary  to  consider  whether  the  instances  of  the  rule 
put  by  Bracton  are  or  are  not  of  this  description.  I  think  they  are 
not.  But  at  the  time  when  Bracton  wrote  they  were  so  considered, 
and  it  was  on  that  ground  that  they  were  put  as  instances  of  the 
rule.  If,  therefore,  there  were  no  insufficiency  in  the  mode  of  aver- 
ring the  facts  stated  in  the  counterplea,  and  if  all  the  circumstances 
there  stated  were  well  pleaded,  still  I  should  be  of  opinion  that 
they  did  not  amount  to  a  presumption  of  the  kind  mentioned  by 
Bracton,  namely,  one  so  strong  and  vehement  as  to  be  incapable  of 
contradiction.     The  defendant  is  therefore  entitled  to  this  his  law- 


252  CASES   ON   COMMON-LAW   PLEADING, 

ful  mode  of  trial.  What  the  consequences  of  deciding  that  this 
coLinterplea  is  insufficient  may  be,  the  court  will,  if  necessary,  take 
further  time  to  consider. 

Lord  Ellenborough,  C.  J.  The  general  law  of  the  land  is  in  favor 
of  wager  of  battel,  and  it  is  our  duty  to  pronounce  the  law  as  it  is, 
and  not  as  we  may  wish  it  to  be.  Whatever  prejudices  may  there- 
fore exist  against  this  mode  of  trial,  still,  as  it  is  the  law  of  the  land, 
the  court  must  pronounce  judgment  for  it. 

Gurney  then,  on  the  part  of  the  appellant,  prayed  time  for  a  day 
or  two  to  consider  whether  the  appellant  would  wish  to  have  any 
further  argument  on  the  point  about  which  the  court  entertained 
doubts  ;  which  was  granted. 

Lord  Ellenborough,  C.  J.  Let  there  be  entered  on  the  record 
curia  advisare  vult. 

And  now  [Monday,  April  20th]  Gurney  appeared  for  the  appel- 
lant, and  stated  that  he  prayed  no  further  judgment.  Whereupon, 
by  consent  of  both  parties,  the  court  ordered  that  judgment  be 
stayed  on  the  appeal  and  that  the  appellee  be  discharged.  The  pro- 
ceedings were  then  handed  over  to  the  crown  side  of  the  court,  and 
Thornton  was  immediately  arraigned  by  Mr.  Barlow  on  the  appeal, 
at  the  suit  of  the  king,  to  which  he  pleaded  instanter,  autre  fois 
acquit. 

The  Attorney-General  then,  being  present  in  court,  confessed  the 
plea  to  be  true.  Whereupon  the  court  gave  judgment  that  the 
appellee  should  go  thereof  without  day.  The  appellee  was  imme- 
diately discharged.^ 

Statute  59  George  III.  Chapter  46.     Axno  1819. 

Cap.  XLVI. 

An  act  to  abolish  appea.s  of  murder,  treason,  felony,  or  other  offences,  and 
wager  of  battel,  or  joining  issue  and  trial  by  battel,  in  writs  of  right.  [22d 
June,  1819.] 

"'Whereas  appeals  of  murder,  treason,  felony,  and  other  offences, 
and  the  manner  of  proceeding  therein,  have  been  found  to  be  op- 
pressive, and  the  trial  by  battel  in  any  suit,  is  a  mode  of  trial  unfit 
to  be  used ;  and  it  is  expedient  that  the  same  should  be  wholly 
abolished;'  be  it  therefore  enacted  by  the  king's  most  excellent 

1  Well  might  Lord  Hale  have  had  in  mind  such  a  case  as  this  when  he  spoke  out 
against  the  procedure  of  his  day,  "  More  offenders  escape  by  the  over-easy  ear  given 
to  exceptions  in  indictments  than  by  their  own  innocence,  and  many  heinous  and  cry- 
ing offences  escape  by  these  unseemly  niceties,  to  the  reproach  of  the  law,  to  the 
shame  of  the  government,  and  to  the  encouragement  of  villainy  and  tlie  dishonor  of 
God."    2  Pleas  of  the  Crown,  193. 


TRIALS.  253 

majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and  commons  in  this  present  parliament  assembled, 
and  by  the  authority  of  the  same,  that  from  and  after  the  passing 
of  this  act,  all  appeals  of  treason,  murder,  felony,  or  other  offences, 
shall  cease,  determine,  and  become  void  ;  and  that  it  shall  not  be 
lawful  for  any  person  or  persons,  at  any  time  after  the  passing  of 
this  act,  to  commence,  take,  or  sue  appeal  of  treason,  murder,  felony, 
or  other  offence,  against  any  other  person  or  persons  whomsoever, 
but  that  all  such  appeals  shall,  from  henceforth,  be  utterly  abol- 
ished ;  any  law,  statute,  or  usage  to  the  contrary  in  any  wise 
notwithstanding. 

"II.  And  be  it  further  enacted,  that  from  and  after  the  passing  of 
this  act,  in  any  writ  of  right  now  depending,  or  which  may  here- 
after be  brought,  instituted,  or  commenced,  the  tenant  shall  not  be 
received  to  wage  battel,  nor  sliall  issue  be  joined  nor  trial  be  had  by 
battel  in  any  writ  of  right,  any  law,  custom,  or  usage  to  the  contrary 
notwithstanding." 

"  Before  the  accession  of  Edward  I.  the  judicial  combat  was  already 
confined  to  that  sphere  over  which  its  ghost  reigned  until  1819. 
The  prosecutor  in  the  appeal  of  felony,  the  demandant  in  the  writ 
of  right,  offered  battle,  the  one  by  his  own,  the  other  by  his  cham- 
pion's body,  and  the  defendant  might  accept  the  offer,  though  by 
this  time  he  could,  if  he  pleased,  have  recourse  to  a  verdict  of  his 
neighbors,  instead  of  staking  his  cause  on  a  combat.  Even  in  the 
Norman  days  '  battle  did  not  lie  '  if  there  was  no  charge  of  crime 
and  less  than  ten  shillings'  worth  of  property  was  in  dispute.  As  a 
means  of  proving  debts  and  '  levying  '  would-be  swearers  from  the 
oath,  it  disappeared  soon  after  Glanvill's  day.  That  the  oath  of  the 
demandant's  witness  and  champion  was  almost  always  false,  was 
notorious,  though  we  liave  met  with  a  man  who  at  the  last  moment 
refused  to  take  it.  Does  this  induce  our  legislators  to  abolish  the 
battle  ?  No,  it  induces  them  to  abolish  the  material  words  in  the 
oath  that  made  the  champion  a  witness.  We  see  one  hireling  los- 
ing his  foot  for  entering  into  warranty  in  an  actio  fur ti  ;  but  for 
civil  causes  professional  pugilists  were  shamelessly  employed.  Ap- 
parently there  were  men  who  let  out  champions  for  hire,  Eichard 
of  Newnham,  whose  services  were  highly  valued  about  the  year 
1220,  might  be  retained  through  his  '  master,'  William  of  Cookham. 
We  doubt  whether  in  Bracton's  day  the  annual  average  of  battles 
exceeded  twenty.  There  was  much  talk  of  figliting,  but  it  generally 
came  to  nothing.  The  commonest  cause  for  fighting  was  the  appeal 
of  an  'approver'  (probator),  that  is,  of  a  convicted  criminal  who 


254  CASES   ON    COMMON-LAW   PLEADING. 

had  obtained  a  pardon  conditional  on  his  ridding  the  world  of  some 
half-dozen  of  his  associates  by  his  appeals.  Decent  people,  how- 
ever, who  were  in  frankpledge  and  would  put  themselves  upon  a 
jury,  were  not  compelled  to  answer  his  accusations. 

"  The  rules  of  the  duel  have  been  so  well  described  by  others  that 
we  shall  say  little  of  them.  Tlie  combatants'  arms  of  offence  are 
described  as  baculi  cornuti,  hastouns  cornuz.  It  has  been  commonly 
assumed  that  this  means  staffs 'tipped  with  horn  ;'  but  Dr.  Brun- 
ner  has  lately  argued  that  the  weapon  thus  described  was  really 
the  old  national  weapon  of  the  Franks,  the  war-axe  {francisca, 
hipennis),  which  in  its  day  had  conquered  Gaul.  The  burden  of 
proof  was  on  the  combatant  who  fought  for  an  affirmative  propo- 
sition ;  his  adversary  won  if  the  stars  appeared  before  the  fight  was 
over."     2  Pollock  and  Maitland,  630. 

Reported  Y.  B.  31-32  Edw.  I.  317.     Anno  1304.1 
In  trespass  de  bonis  asportatis,  no  trial  by  battle. 

Eobert  le  Conestable  and  Lucy,  his  wife,  and  others  named  in  the 
writ,  some  of  whom  came  and  some  of  whom  did  not  come,  were 
attached  to  answer  William  le  Latimer,  the  younger,  why  with  force 
and  arms  on  a  certain  day  in  a  certain  year  in  such  a  vill  they 
ravished  and  took  away  Margery,  the  wife  of  the  said  William, 
together  with  his  goods  and  his  chattels  found  there,  viz.  rings  and 
buckles  of  gold  and  cups  of  silver  to  the  value  of,  etc.,  against  the 
enactments  of  our  lord  the  king  and  his  statute,  to  his  damage,  etc. 

And  then  said  Sir  Robert  le  Conestable  that  if  the  court  would 
allow,  he  was  ready  to  affirm  by  his  body  as  became  a  knight  that 
he  was  not  guilty  ;  and  he  threw  down  his  glove  to  the  court.  And 
William  le  Latimer  offered  in  like  manner  to  prove  the  affirmative. 
And  the  justices  refused  that  issue,  because  they  had  no  warrant  to 
receive  such  an  issue.  And  then  said  Herle,  as  to  Robert  and  the 
others  named  who  are  here,  except  Lucy,  the  wife  of  Robert,  not 
guilty,  ready,  etc. :  and  as  to  Lucy,  judgment  of  the  writ ;  for  a 
woman  cannot  ravish  another  woman;  judgment  if  this  writ  lie 
against  her.  Howard.  Although  she  could  not  ravish  her,  she  could 
assent  to  it ;  therefore  answer  over.  Herle.  She  answers  you  that 
she  is  not  guilty  ;  ready,  etc.    And  the  other  side  said  the  contrary. 

Trial  by  Record. 
"Trial  by  record  was  used  to  determine  the  existence  of  facts 
alleged  to  have  happened  in  court.     The  records  of  the  superior 

1  A  part  of  the  case  is  omitted. 


TRIALS.  255 

courts,  whether  proved  orally  or  by  inspection,  were  indisputable  ; 
those  of  the  inferior  courts  could  be  impeached."  Harriman,  Con- 
tracts, 373. 

Trial  by  Charter. 

"  In  the  case  of  trial  by  charter,  the  charter  was  produced  at  the 
trial.  If  it  appeared  to  be  gQnuiue,  the  party  who  executed  it  was 
lieLl  to  be  bound  by  his  solemn  act  or  deed,  and  all  statements  and 
promises  therein  contained  were  binding  on  him  in  favor  of  the 
other  party  to  the  deed.  The  Saxon  method  of  executing  a  deed 
was  fur  the  party  to  subscribe  his  name  if  he  could,  and  in  any  case 
to  affix  the  sign  of  the  cross.  Seals  were  sometimes  used,  but  were 
not  essential  to  the  validity  of  the  deed.  The  Normans  were  more 
accustomed  to  the  use  of  seals,  and  after  the  Norman  Conquest  the 
seal  came  to  be  essential  to  the  validity  of  the  deed ;  but  so  late  as 
the  reign  of  Henry  II.  we  have  strong  evidence  that  the  use  of  seals 
was  common  only  among  great  men.  Centuries  later,  in  Pillans 
V.  Van  Mierop,  one  of  the  greatest  of  English  judges  held  a  promise 
in  writing  to  be  binding  without  a  seal ;  but  his  decision  proved  of 
little  consequence,  as  it  was  soon  overruled  by  the  House  of  Lords. 

"  When  the  charter  was  produced  in  court,  the  judge  determined 
its  genuineness  by  comparison  of  the  seal  with  other  seals  of  the 
same  party,  if  possible ;  otherwise,  the  party  producing  the  charter 
might  prove  the  seal  by  means  of  the  duel.  When  it  was  once 
established  that  the  seal  was  the  defendant's,  he  was  held  bound 
by  the  deed,  although  the  seal  had  been  affixed  without  his  consent ; 
but  if  he  had  lost  his  seal  he  was  not  responsible  for  its  use  ;  provided 
he  had  given  public  notice  of  its  loss.  The  evidence  afforded  by 
the  deed  could  only  be  contradicted  or  overcome  by  other  evidence 
of  an  equally  satisfactory  character.  Oral  testimony  was  inadmis- 
sible to  impeach  or  to  modify  the  effect  of  a  deed  when  the  genuine- 
ness of  that  deed  was  once  established,  —  a  rule  which  still  prevails 
in  common-law  courts."     Harriman,  Contracts  [2d  ed.],  373. 

Trial  by  Jury. 

"  That  in  old  umes  the  '  jurors  were  the  witnesses  '  — this  doctrine 
has  in  our  own  days  become  a  commonplace.  For  the  purposes  of  a 
popular  exposition  it  is  true  enough.  Nevertheless  it  does  not  quite 
hit  the  truth.  If  once  the  jurors  had  been  called  testes,  if  once  their 
veredictum  had  been  brought  under  the  rubric  testimonium,  the 
whole  subsequent  history  of  the  jury  would  have  been  changed,  and 


256  CASES    ON    COMMON-LAW   PLEADING. 

never  by  imperceptible  degrees  would  the  jurors  have  ceased  to  be 
'  witnesses '  and  become  judges  of  fact.  In  all  probability  a  time 
would  have  come  when  the  justices  would  have  begun  to  treat  these 
testes  in  the  manner  in  which  witnesses  ought  to  be  treated  ac- 
cording to  our  ideas  ;  each  witness  would  have  been  separated  from 
his  fellows  and  questioned  as  to  his  belief  and  its  grounds.  The 
court,  instead  of  receiving  the  single  verdict  of  a  jury,  would  have  set 
itself  to  discuss  the  divergent  testimony  of  twelve  jurors.  Where 
there  was  a  flat  contradiction  it  might  have  been  puzzled ;  still  the 
simple  device  of  counting  heads  was  open  to  it,  and  in  all  events  it 
might  have  insisted  that  each  juror -whose  testimony  was  received 
should  possess  a  first-hand  knowledge  of  the  facts  about  which  he 
spoke,  for^  already  the  elementary  truth  that  '  hearsay  '  is  untrust- 
worthy had  been  apprehended.^  Therefore  we  have  to  explain  why 
the  history  of  the  jury  took  a  turn  which  made  our  jurors,  not  wit- 
nesses, but  judges  of  fact,  and  the  requisite  explanation  we  may  find 
in  three  ancient  elements  which  are  present  in  trial  by  jury  so  soon 
as  that  trial  becomes  a  well-established  institution.  For  want  of 
better  names,  we  may  call  them  (1)  the  arbitral,  (2)  the  communal, 
and  (3)  the  quasi-^xxdacisiX  elements. 

"  (1)  Jurors  are  not  arbitrators.  We  have  seen,  however,  that 
the  verdict  of  jurors  becomes  a  common  mode  of  proof  only  because 
litigants  '  put  themselves'  upon  it,  and  that  the  summons  of  a  jury 
(in  the  narrow  sense  of  that  term  which  opposes  iurata  to  assisa') 
is  always  in  theory  the  outcome  of  consent  and  submission.  Both 
litigants  have  agreed  to  be  bound  by  a  verdict  of  the  country. 
They  might  perhaps  have  chosen  some  other  test.  We  may,  for 
example,  see  a  plaintiff  and  a  defendant  '  putting  themselves '  upon 
the  two  witnesses  named  in  a  charter,  or  upon  the  word  of  some 
one  man.  Now  in  such  a  case  neither  of  the  litigants  can  quarrel 
with  tlie  declaration  that  he  has  invoked.  He  has  called  for  it 
and  must  accept  it.  So  with  the  verdict  of  the  country ;  he  has 
asked  for  it,  and  by  it  he  must  stand  or  fall.  It  is,  says  Bracton, 
'  his  own  proof,'  and  therefore  he  cannot  reprobate  it.  If  he  pro- 
duced as  compurgators  men  who  at  the  last  moment  refused  to  help 
him  in  his  oath,  he  could  not  demand  from  them  an  explanation  of 
their  conduct.  So  with  the  jurors ;  it  is  not  for  him  to  ask  them 
questions  or  expose  their  ignorance,  for  he  has  put  himself  upon 
their  oath.  What  he  cannot  do  for  himself  the  court  will  not  do 
for  him.     The  justices  are  not  tempted  to  analyze  the  process  of 

1  See,  e.  g.  Select  Pleas  of  the  Crown,  pi.  29  [a.  d.  1202] ;  "Et  hoc  offert  probare 
.  .  .  sicut  ille  qui  non  vidit  hoc  sed  per  alios  habet  eum  suspectum.  Nullum  est 
appellum." 


TRIALS.  257 

which  an  unanimous  verdict  is  the  outcome ;  that  verdict  has  been 
accepted  in  advance  by  the  only  persons  whom  it  will  affect. 

"  (2)  The  verdict  of  the  jurors  is  not  just  the  verdict  of  twelve 
men  ;  it  is  the  verdict  of  a  pays,  a  'country,'  a  neighborhood,  a  com- 
munity. There  is  here  a  volatile  element  which  we  cannot  easily 
precipitate,  for  the  thoughts  of  this  age  about  the  nature  of  com- 
munities are  vague  thoughts,  and  we  cannot  say  '  the  country '  is 
definitely  persmia  ficta.  Still  we  may  perceive  what  we  cannot 
handle,  and,  especially  in  criminal  procedure,  the  voice  of  the  twelve 
men  is  deemed  to  be  the  voice  of  the  country-side,  often  the  voice 
of  some  hundred  or  other  district  which  is  more  than  a  district, 
which  is  a  community.  The  justices  seem  to  feel  that  if  they 
analyzed  the  verdict  they  would  miss  the  very  thing  for  which 
they  are  looking,  the  opinion  of  the  country. 

"  (3)  Lastly,  we  may  already  detect  in  the  verdict  of  the  jurors 
an  element  which  we  cannot  but  call  ^ttasi-judicial.  Whatever 
theory  may  have  prevailed,  the  parties  to  an  action  are  very  soon 
submitting  to  'the  country'  questions  which  the  twelve  represen- 
tatives of  the  country  will  certainly  not  be  able  to  answer  if  they 
speak  only  of  what  they  have  seen  with  their  own  eyes.  Some  of  the 
verdicts  that  are  given  must  be  founded  upon  hearsay  and  floating 
tradition.  Indeed,  it  is  the  duty  of  the  jurors,  so  soon  as  they  have 
been  summoned,  to  make  inquiries  about  the  facts  of  which  they 
will  have  to  speak  when  they  come  before  the  court.  They  must 
collect  testimony ;  they  must  weigh  it  and  state  the  net  result  in 
a  verdict.  Bracton  sees  that  this  is  so ;  he  even,  though  in  a  loose, 
untechnical  sense,  speaks  of  the  jurors  as  deliberating  and  '  judg- 
ing,' and  he  speaks  of  the  result  of  their  deliberations,  when  it  takes 
the  form  of  a  general  verdict,  as  a  '  judgment.' 

"  It  is  to  the  presence  of  these  three  elements  that  we  may  ascribe 
the  ultimate  victory  of  that  principle  of  our  law  which  requires  an 
unanimous  verdict.  .  .  . 

"  The  victory  is  not  complete  until  the  fourteenth  century  is  no 
longer  young ;  but,  from  the  moment  when  our  records  begin,  we 
seem  to  see  a  strong  desire  for  unanimity.  In  a  thousand  cases  the 
jury  is  put  before  us  as  speaking  with  a  single  voice,  while  any 
traces  of  dissent  or  of  a  nescience  confessed  by  some  only  of  the 
jurors  are  very  rare.  '  You  shall  tell  us,'  says  a  judge  in  1293,  '  in 
other  fashion  how  is  next  heir,  or  you  shall  remain  shut  up  without 
meat  or  drink  until  the  morrow. '" i     2  Pollock  and  Maitland,  620. 

1  Y.  B.  21-22  Edw.  I.  p.  273. 
17 


CHAPTER   V. 

CODES   AND   PRACTICE   ACTS, 
(a)    Codes  —  Their  Relation  to  the  Common  Law. 

The  Code  of  Civil  Procedure  of  the  State  of  New  York 
may  be  referred  to  as  typical. 

1.   Actions. 

"  The  Code  of  New  York,  as  originally  adopted,  declared,  '  the 
distinctions  between  actions  at  law  and  suits  in  equity,  and  the 
forms  of  all  such  actions  and  suits  heretofore  existing,  are  abolished  ; 
and  there  shall  be  in  this  State  hereafter  but  one  form  of  action  for 
the  enforcement  or  protection  of  private  rights  and  the  redress  of 
private  wrongs,  which  shall  be  denominated  a  civil  action.'  With 
slight  verbal  changes  the  above  provision  has  been  enacted  in  most 
of  the  States  and  Territories  which  have  adopted  the  reformed 
procedure."     Bryant,  Code  PI.  106. 

"The  different  forms  of  actions  at  law  are  no  longer  known. 
There  is  no  inquiry  whether  the  action  is  covenant  or  assumpsit, 
trespass,  trover,  or  case.  Disencumbered  of  all  arbitrary  forms  of 
classification,  the  action  is  instituted  by  the  service  of  the  sum- 
mons. The  complaint  or  petition  states  the  cause  of  action." 
Bryant,  Code  PI.  107. 

The  summons,  then,  is  roughly  analogous  to  the  original  writ  of 
the  common  law  ;  the  complaint  or  petition,  to  the  declaration. 

GOULET   V.  ASSELER  et  al. 

Court  of  Appeals,  New  York.     1860. 

Reported  22  New  York,  225. 

The  fundamental  elements  of  the  several  actions  at  the  common  law  are 
not  abolished  by  the  codes. 

Appeal  from  the  Superior  Court  of  the  City  of  New  York. 
Action  for  taking,  selling,  and  converting  to  the  defendant's  use  a 
quantity  of  wines,  liquors,  cigars,  and  bar  furniture,  the  stock  and 


CODES   AND   PRACTICE   ACTS.  259 

utensils  of  a  restaurant  The  plaintiff  made  title  under  a  chattel 
mortgage  executed  to  him  by  M.  Caussidiere  and  E.  Bonnier  ;  and 
the  defendant  justified  under  a  judgment  and  execution  against  the 
mortgagors,  in  which  judgment  they  were  the  plaintiff's,  the  exe- 
cution being  levied  on  the  property  by  their  direction.  The  mort- 
gage was  dated  March  19,  1855,  and  purported  to  be  for  the 
security  of  $1200,  payable  in  one  year  from  that  date.  It  contained 
the  following  clause  :  "  And  until  default  be  made  in  the  payment 
of  the  said  sum  of  money,  we  [the  mortgagors]  are  to  remain  and 
continue  in  the  quiet  and  peaceable  possession  of  said  goods  and 
chattels,  and  in  the  full  and  free  enjoyment  of  the  same."  The 
principal  part  of  the  property,  in  value,  was  wines,  liquors,  and 
cigars.  The  defendants  were  prosecuting  their  action  when  the 
mortgage  was  executed,  and  obtained  judgment  shortly  afterward. 
The  officer  sold  the  goods  on  the  .execution  on  the  27th  April, 
1855.  The  sale  was  in  different  parcels,  and  the  goods  were  de- 
livered by  the  officer  to  the  respective  purchasers,  and  the  proceeds 
were  paid  to  the  defendants.  No  mention  was  made  of  the  mort- 
gage at  the  sale,  though  the  defendants  had  been  informed  of  it 
after  the  levy  and  before  the  sale  took  place.  It  did  not  appear 
that  the  defendants  purchased  any  of  the  goods  at  the  sale.  The 
action  was  commenced  after  the  debt  mentioned  in  the  mortgasre 
became  payable  ;  and  the  plaintiff  had,  after  that  time  and  before 
bringing  the  suit,  demanded  the  goods  of  the  defendants.  The 
character  of  the  complaint  and  of  the  evidence  sufficiently  appears 
from  the  following  opinion. 

The  defendants,  on  the  trial,  insisted  that  the  goods  were  subject 
to  levy  on  execution  against  the  mortgagors,  and  that  the  action 
could  not  be  sustained.  The  jury  were  instructed  to  assess  the 
value  of  the  goods  and  to  give  their  verdict  for  the  plaintiff  to  that 
value,  subject  to  the  opinion  of  the  court,  with  power  to  dismiss 
the  complaint.  The  value  was  fixed  by  the  jury  at  $850,  and  the 
court  at  general  term  gave  judgment  for  the  plaintiff  for  that 
amount.  The  defendants  appealed.  The  case  was  submitted  with- 
out oral  argument,  on  printed  briefs. 

John  Sessions,  for  the  appellants. 

John  Cook,  for  the  respondent. 

Selden,  J.  If  the  plaintiff  has  any  legal  remedy  for  the  injury 
of  which  he  complains,  it  is  clear  that  that  remedy  has  not  been 
properly  pursued  in  the  present  case,  and  that  the  judgment  therein 
cannot  be  sustained  consistently  with  the  well-established  principles 
of  the  common  law,  and  the  repeated  decisions  of  this  court.  The 
difficulty  in  the  case,  and  the  error  of  the  court  below,  will  be  most 


260  CASES    ox    COMMON-LAW    PLEADING. 

readily  seen  and  appreciated  bj  referring  to  some  of  the  distinc- 
tions between  those  forms  of  action  which  the  Code  has  abolished. 
It  can  hardly  be  claimed  that,  prior  to  the  Code,  an  action  of  tres- 
pass or  trover  could  have  been  maintained,  either  against  the  officer 
Or  the  plaintiff  in  the  execution,  under  the  circumstances  here  dis- 
closed. The  case  would  have  fallen  directly  within  the  principles 
of  the  case  of  Gordon  v.  Harper,  7  Term  Reports,  9,  and  the  sub- 
sequent cases  of  that  class  which  have  never  been  departed  from 
either  in  England  or  in  this  country.  If  any  action  would  have 
lain  before  the  Code,  it  could  only  have  been  an  action  founded 
upon  the  special  circumstances  of  the  case,  setting  forth  the  injury 
to  the  contingent  interest  of  the  plaintiff  in  the  property,  and 
claiming  damages  for  such  injury. 

While,  however,  in  such  an  action,  the  plaintiff  would  have 
avoided  the  effect  of  the  technical  rule  that,  in  order  to  recover  in 
trespass  or  trover,  he  must  show  that  he  had  either  the  actual  pos- 
session or  the  right  of  the  possession  at  the  time  of  the  alleged 
taking  or  conversion,  he  also,  supposing  that  the  action  could  have 
been  maintained,  would  have  imposed  upon  himself  the  necessity 
of  proving,  specifically,  the  damages  which  he  had  sustained.  In 
trespass  and  trover,  before  the  Code,  the  plaintiff  recovered,  if  at 
all,  upon  the  ground  that  he  was  the  owner  of  the  property  in  con- 
troversy. The  measure  of  damages,  therefore,  in  all  such  cases, 
was  the  value  of  the  property  taken  or  converted.  Although  it 
appeared  that  the  plaintiff  held  the  title  as  mere  security  for  a 
debt,  and  that  his  debtor  was  abundantly  able  to  pay,  so  that  his 
actual  loss  was  nothing,  his  recovery,  in  cases  where  he  recovered 
at  all,  was  nevertheless  for  the  full  value  of  the  property,  provided 
that  did  not  exceed  the  amount  of  his  lien.  In  a  special  action  on 
the  case,  on  the  contrary,  the  plaintiff  could,  under  no  circum- 
stances, recover  more  than  the  damages  shown  to  have  been 
actually  sustained.  He  must  prove  to  what  extent  his  security 
was  impaired,  by  showing  whether  the  debtor  was  or  was  not  re- 
sponsible, and  whether  or  not  it  was  still  in  his  power  to  follow 
and  enforce  his  lien  against  the  property. 

Although  the  Code  has  abolished  all  distinction  between  the 
mere  forms  of  action,  and  every  action  is  now  in  form  a  special 
action  on  the  case,  yet  actions  vary  in  their  nature,  and  there  are 
intrinsic  differences  between  them  which  no  law  can  abolish.  It 
is  impossible  to  make  an  action  for  a  direct  aggression  upon  the 
plaintiff's  rights  by  taking  and  disposing  of  his  property  the  same 
thing,  in  substance  or  in  principle,  as  an  action  to  recover  for  the 
consequential  injury  resulting  from  an  improper  interference  with 


CODES   AND   PRACTICE    ACTS.  261 

the  property  of  another,  in  which  he  has  a  contingent  or  prospec- 
tive interest.  The  mere  formal  differences  between  such  actions 
are  abolished.  Tlie  substantial  differences  remain  as  before.  The 
same  proof,  therefore,  is  required  iu  each  of  these  two  kinds  of 
actions  as  before  the  Code,  and  the  same  rule  of  damages  applies. 
Hence,  in  an  action  in  which  the  plaintiff  establishes  a  right  to  re- 
cover, upon  the  ground  that  the  defendant  has  wrongfully  con- 
verted property  to  the  possession  of  which  the  plaintiff  was  entitled 
at  the  time  of  the  conversion,  the  proper  measure  of  damages  still 
is,  the  value  of  the  property ;  while  in  an  action  in  which  the 
plaintiff  recovers,  if  at  all,  upon  the  ground  that  the  defendant 
has  so  conducted  himself  in  the  exercise  of  a  legal  right  in  respect 
to  another's  property,  as  unnecessarily  and  improperly  to  reduce 
the  value  of  a  lien,  which  the  plaintiff  could  only  enforce  at  some 
subsequent  day,  the  damages  must,  of  course,  depend  upon  the  ex- 
tent to  which  that  lien  has  been  impaired. 

If  we  apply  these  principles  to  the  present  case,  the  error  in 
the  judgment  under  review  becomes  apparent.  The  complaint  is, 
iu  substance,,  the  same  as  a  declaration  in  trover,  under  the  former 
system  of  pleading.  .  ,  .  The  proof  could,  at  most,  only  authorize 
the  plaintiff'  to  recover  the  consequential  damnges  resulting  to  the 
contingent  interest  under  the  mortgage  ;  while  the  damages  were 
assessed  and  the  judgment  rendered  upon  the  assumption  that  he 
was  the  owner  of  the  property  and  entitled  to  the  immediate 
possession.  .  ,  .  The  judgment  must  be  reversed,  and  there  must 
be  a  new  trial,  with  costs  to  abide  the  event. 

All  the  judges  were  for  reversal  upon  the  preceding  opinion  ^ 
except  Comstock,  Ch.  J.,  and  Denio,  J.  [the  latter  of  whom  gave  a 
dissenting  opinion]. 

2.  The  Summons. 

"A  civil  action  is  commenced  by  the  service  of  a  summons." 
Code  Proc.  s.  127. 

"  The  summons  must  contain  the  title  of  the  action,  specifying 
the  court  iu  which  the  action  is  brought,  the  names  of  the  parties 
to  the  action,  and,  if  it  is  brought  in  the  Supreme  Court,  the  name 
of  the  county  in  which  the  plaintiff  desires  the  trial ;  and  it  must 
be  subscribed  by  the  plaintiffs  attorney,  who  must  add  to  his  sig- 
nature his  post-office  address,  specifying  a  place  in  the  State  where 
there  is  a  post-office.      If  in  a  city,  he  must  add  the  street,  and 

1  Eldridge  v.  Adams,  54  Barb.  417  (1866);  Miller  v.  Van  Ta.ssell.  24  Cal.  459 
(1864);  Murphy  i-.  Estes,  6  Hush  (1869);  Hill  r.  Barrett,  14  B.  Mouroe  (1853),  ace, 
Cf.  Tru.stees  of  School  Section  Sixtecu  v.  Odlin,  8  Ohio  St.  293  (1858). 


262  CASES    0-^   COMMON-LAW   PLEADING. 

street  number,  if  any,  or  other  suitable  designation  of  the  particular 
locality."    Code  Proc.  s.  128  ;  Am.  L.  1877,  c.  416  ;  L.  1879,  c.  542. 

3.    The  Form  of  the  Summons. 

"  The  summons,  exclusive  of  the  title  of  the  action  and  the  sub- 
scription, must  be  substantially  in  the  following  form,  the  blanks 
being  properly  filled : 

" '  To  the  above  named  defendant :  You  are  hereby  summoned  to 
answer  the  complaint  in  this  action,  and  to  serve  a  copy  of  your 
answer  on  the  plaintiff's  attorney  within  twenty  days  after  the  ser- 
vice of  this  summons,  exclusive  of  the  day  of  service  ;  and  in  case  of 
your  failue  ^  to  appear  or  answer,  judgment  will  be  taken  against 
you  by  default,  for  the  relief  demanded  in  the  complaint.     Dated 


The  summons  is  deemed  the  mandate  of  the  court.  See  Code 
Proc.  s.  129,  Am.  L.  1877,  c.  416. 

4.    The  Service  of  the  Summ.ons. 

"  The  summons  may  be  served  by  any  person,  other  than  a  party 
to  the  action,  except  where  it  is  otherwise  specially  prescribed  by 
law.  The  plaintiffs  attorney  may,  by  an  indorsement  on  the  sum- 
mons, fix  a  time  within  which  the  service  thereof  must  be  made  ;  in 
that  case,  the  service  cannot  be  made  afterwards.  Where  a  sum- 
mons is  delivered  for  service  to  the  sheriff  of  the  county,  wherein 
the  defendant  is  found,  the  sheriff  must  serve  it,  and  return  it, 
with  proof  of  service,  to  the  plaintiff's  attorney,  with  reasonable 
diligence."     Code  Proc.  s.  133.     See  rule  18. 

(b)    Practice  Acts  —  Their  Relation  to  the  Common  Law. 

The  Practice  Act  of  Massachusetts,  drawn  in  its  final 
form  by  Hon.  Benjamin  R.  Curtis,  later  one  of  the  justices 
of  the  Supreme  Court  of  the  United  States,  may  be  referred 
to  as  typical. 

1.  Actions. 

"  There  shall  be  only  three  divisions  of  personal  actions  :  — 
"  First,  Contract,  which  shall  include  actions  formerly  known  as 
assumpsit,  covenant,  and  debt,  except  actions  for  penalties. 

^  So  in  the  originaL 


CODES   AND    PRACTICE    ACTS.  263 

•'  Second,  Tort,  which   shall  include  actions  formerly  known  as 
trespass,  trespass  on  the  case,  trover,  and  actions  for  penalties. 
"  Third,  Keplevin."     Ke vised  Laws,  Massachusetts,  c.  173,  s.  1. 


2.    The  Original  Writ. 

"Actions  at  law,  unless  founded  on  scire  facias  or  other  special 
writs,  or  unless  otherwise  authorized  by  statute  or  by  established 
practice,  shall  be  commenced  by  original  writs.  Such  writs  shall 
be  signed,  sealed,  and  bear  teste  as  required  by  the  constitution,  and 
shall  be  framed  either  to  summon  the  defendant,  with  or  without 
an  order  to  attach  his  goods  or  estate,  or  to  attach  his  goods  or  es- 
tate and,  for  want  thereof,  to  take  his  body ;  or,  in  an  action  com- 
menced by  the  trustee  process,  to  attach  his  goods  or  estate  in  his 
own  hands,  and  also  in  the  hands  of  the  trustee.  Original  writs 
shall  be  in  the  form  heretofore  established  by  law  and  by  the  usage 
and  practice  of  the  courts.  If  changes  in  their  form  are  necessary 
to  adapt  them  to  clianges  in  the  law,  or  for  any  other  sufficient 
reason,  the  courts  may  make  such  changes,  subject  to  the  final 
control  of  the  supreme  judicial  court,  which  may,  by  general  rule, 
regulate  such  changes  in  all  the  courts.  Original  writs  issued  by 
trial  justices  shall  be  signed  by  the  justice  before  whom  the  action 
is  brought,  and  shall  be  dated  and  filled  up  like  other  original 
writs."     Revised  Laws,  Massachusetts,  c.  167,  s.  15. 


3.    Form  of  the  Original  Writ. 

COMMONWEALTH   OF  MASSACHUSETTS. 
Suffolk,  ss. 

To  A.  B.,  of  Boston,  in  said  county. 


Greeting : 


We  command  you  that  j'ou  appear  at  our  Superior  Court  next  to  be 
holden  at  Boston,  within  and  for  our  County  of  Suffolk  aforesaid,  on 
the  first  Monday  of  April  next;  then  and  there  to  answer  to  C.  D.,  of 
said  Boston,  in  an  action  of  contract,  which  action  the  said  plaintiff 
has  commenced  against  you,  to  be  heard  and  tried  at  our  said  Court; 
and  your  goods  or  estate  are  attached  to  the  value  of  three  hundred 
dollars,  for  security  to  satisfy  the  judgment  which  the  said  plaintiff 
may  recover  upon  the  aforesaid  trial.  Fail  not  of  appearance  at  your 
peril 


264  CASES    ON   COMMON-LAW   PLEADING. 

Witness,  A.  M.,  Esquire,  at  Boston,  the  first  da}'  of  March,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  two. 

J.  A.  W    Clerk. 
From  the  office  of  G.  «fe  H. 


4.    By  Whom  Process  may  he  Served. 

"  It  is  the  dut}'  of  sheriffs  and  their  deputies,  acting  within  their  re- 
spective counties,  to  serve  and  execute  all  writs  and  precepts  lawfully 
issued  to  them."     R.  L.  c.  23,  s.  12. 

''Constables  who  have  given  a  bond  in  the  sum  of  $1,000  may  in 
their  own  towns  serve  writs  and  processes  in  personal  actiofts  in  which 
the  damages  are  not  laid  at  a  sum  larger  than  $200,  and  anj'  process 
in  replevin  in  which  the  subject-matter  does  not  exceed  in  value  $200, 
and  anv  writ  or  other  process  under  the  law  relating  to  summary  pro- 
cess for  the  recovery  of  land.  Or  these  officers  may  give  bonds  in  a 
sum  not  less  than  $3,000,  and  become  authorized  to  serve  the  processes 
described  above  whenever  the  ad  dammim,  or  the  value  of  the  goods 
replevied,  does  not  exceed  $300.  No  constable  is  qualified  to  serve 
civil  process  until  he  has  given  a  bond."     R.  L.  c.  25,  ss.  83,  84. 

[The  connection  between  the  common  law  and  statutory  sys- 
tems of  pleading  will  be  dealt  with  at  length  m  the  following 
chapter.  —  Ed.] 


PART   II.  —  PLEADINGS   IN   PERSONAL   ACTIONS. 


CHAPTER   VL 

DECLARATIONS. 

Problem.  Draw  a  declaration,  say  in  trover,  upon  a  given 
state  of  facts.  Procedure.  (1)  Ascertain  from  the  follow- 
ing pages  the  requisites  of  the  declaration,  both  substantive 
and  formal.  (2)  Note  how  those  requisites  are  dealt  with 
in  the  form  of  declaration  in  trover  hereinafter  presented. 
(3)  From  the  quoted  text,  determine  how  the  form  of  the 
allegrations  should  be  varied  to  suit  the  given  facts  on 
which  the  declaration  required  is  to  be  drawn.  (4)  Draw  it. 
The  same  method  in  developing  a  declaration  in  any 
other  form  of  personal  action  may  be  employed. 

ESSENTIALS   OF   A   VALID   DECLARATION. 

Pkesented  Tidd's  Practice,  Vol.  I.  page  361. 
THE   TITLE. 

"  On  the  return  of  the  writ,  when  the  defendant  has  appeared,  and 
filed  common  bail,  when  necessary,  or  put  in  and  perfected  special 
bail,  the  plaintiff  in  due  time  should  declare  against  him. 

"  The  declaration  is  a  legal  specification  of  the  cause  of  action ; 
and  in  actions  by  original,  is  an  exposition  of  the  writ,  with  the 
addition  of  time,  place,  and  other  circumstances. 

"  The  parts  of  a  declaration  are,  first,  tlie  title ;  secondly,  the 
venue  ;  thirdly,  the  commencement ;  fourthly,  the  statement  of  the 
cause  of  action  ;  and  lastly,  the  conclusion.^     The  declaration  by 

1  In  Heath's  Maxims,  it  is  said  that  a  count  or  declaration,  being  terms  equivocal, 
nuf^ht  principally  to  contain  tliree  thinj;s:  first,  the  plaintiff's  and  defendant's  names, 
which  iii  actions  real  are  called  demandant  and  tenant,  and  the  nature  of  the  action ; 
and  this  by  some  is  termed  the  demonstration,  or  demctnstrative  part  of  the  count : 
secondly,  the  time,  the  place,  and  the  act;  in  which  ought  to  be  comprehended  how, 


266  CASES   ON    COMMON-LAW    PLEADING. 

bill  should  regularly  be  entitled  of  the  day  on  which  the  writ  is 
returnable  ;  for  the  bill,  of  which  it  is  a  copy,  cannot  be  filed  till  the 
bail  is  put  in,  which  cannot  be  till  the  return  of  the  writ.     And 
where  there  are  several  defendants,  who  put  in  bail  of  different 
terms,  the  declaration  should  be  entitled  of  the  term  when  the  last 
bail  was  put  in.     In  practice  it  is  usual,  when  the  cause  of  action 
will  admit  of  it,  to  entitle  the  declaration,  whether  by  bill  or  orig- 
inal, "enerallv,  of  the  term  in  which  the  writ  is  returnable  ;  and 
though  filed  or  delivered,  it  cannot  regularly  be  entitled  of  a  sub- 
sequent term.      But  it  should  always  be  entitled  after  the  time 
when   the  cause   of  action  is  stated  to  have  accrued ;    therefore, 
where  the  cause  of  action  is  stated  to  have  accrued  after  the  first 
day  of  the  term  in  which  the  writ  is  returnable,  the  declaration 
should  be  entitled  of  a  subsequent  day  in  that  term,  and  not  of 
the  term  generally ;  for  a  general  title  refers  to  the  first  day  of  the 
term ;  and  upon  such  a  title,  it  would  appear  that  the  action  was 
commenced  before  the  cause  of  it  accrued.     Yet,  where  the  cause 
of  action  was   stated   to  have  accrued   on  the  first  day  of  term, 
the  court,  on  demurrer,  held  that  the  declaration  might  be  entitled 
of  the  term  generally  ;  for  the  delivery  of  the  declaration  is  the  act 
of  the  party,  and  in  ancient  times  it  could  not  have  been  delivered 
till  the  sitting  of  the  court;  so  that  the  cause  of  action  miglit  well 
have  accrued  before  the  actual  delivery  of  the  declaration.     Where 
a  declaration  is  improperly  entitled,  the  plaintiff  may  have  it  cor- 
rected on  an  affidavit  of  the  fact.     And  leave  has  been  given  to 
amend  the  declaration,  by  entitling  it  of  the  day  on  which  it  was 
actually  delivered,  instead  of  the  term  generally,  in  order  to  accord 
with  an  averment  therein,  that  other  defendants  named  in  the  writ 
were  then  outlawed.    Or  it  may  be  set  right,  at  the  instance  of  the 
defendant,  if  necessary  for  his  defence.    Thus,  where  the  declaration 
is  entitled  of  the  term  generally,  and  the  defendant  pleads  plene 
administravit,  or  a  tender  made  before  the  exhibiting  of  the  bill, 
upon  which  he  would  give  in  evidence  an  administration  of  assets, 
or  tender  made,  between  the  first  day  of  the  term  to  which  the  bill 
relates  and  the  day  of  suing  out  the  writ ;  he  has  a  right  to  call 
upon  the  plaintiff,  to  entitle  his  declaration  properly." 

and  in  what  manner,  the  action  did  accrue,  or  first  arise  between  the  parties ;  when, 
what  day,  what  year,  and  what  place,  and  to  whom  the  action  sliall  be  given  ;  which  is 
called  tiie  declarative  part  of  the  count :  and  lastly,  the  perclose  or  conclusion,  which 
is  uncle  deterioratus  est,  etc. ;  in  which  the  plaintiff  ought  to  aver,  and  proffer  to  prove 
his  suit,  and  show  the  damage  he  hath  sustained,  by  the  wrong  and  injury  done  by 
the  defendant.  And  the  declaration,  according  to  this  definition,  consisting  of  a  tria, 
somewhat  resemlding  the  logical  major,  minor,  and  conclusion,  some  of  the  ancients 
(among  whom  none  was  more  fond  of  it  than  Mr.  Fleetwood,  the  famous  recorder  of 
London)  conceived  it  to  be  a  perfect  syllogism.     Heath's  Max.  2. 


DECLARATIONS.  267 

THE   VENUE. 

Pbesenteu  Tidd's  Practice,  Vol.  I.  pagb  368. 

"  The  venue  in  personal  actions,  or  county  where  the  action  is  laid, 
and  intended  to  be  tried,  is  local  or  transitory.  When  the  action 
could  only  have  arisen  in  a  particular  county,  it  is  local,  and  the 
venue  must  be  laid  in  that  county;  for  if  it  be  laid  elsewhere,  the 
defendant  may  demur  to  the  declaration,  or  the  plaintiff,  on  the  gen- 
eral issue,  will  be  nonsuited  at  the  trial.  Such  are  all  real  and 
mixed  actions,  and  actions  of  ejectment,  and  trespass  quare  clausum 
frerjit,  etc.  But  where  the  action  might  have  arisen  in  any  county, 
as  upon  contracts,  it  is  transitory,  and  the  plaintiff  may  in  general 
lay  the  venue  wherever  he  pleases ;  subject,  however,  to  its  being 
changed  by  the  court,  if  not  laid  in  the  very  county  where  the 
action  arose. 

"  To  use  the  words  of  Lord  Mansfield,  in  the  case  of  Fabrigas  v. 
Mostyn  :  ^  '  There  is  a  formal  and  a  substantial  distinction  as  to  the 
locality  of  trials.  I  state  them,  says  he,  as  different  things.  With 
regard  to  matters  arising  within  the  realm,  the  substantial  distinc- 
tion  is  where  the  proceeding  is  in  rem,  and  where  the  effect  of  the 
judgment  could  not  be  had,  if  it  were  laid  in  a  wrong  place.  That 
is  the  case  of  all  ejectments,  where  possession  is  to  be  dehvered  by 
the  sheriff  of  the  county  ;  and  as  trials  in  England  are  in  particular 
counties,  and  the  officers  are  county  oJBficers,  the  judgment  could  not 
have  effect,  if  the  action  were  not  laid  in  the  proper  county. 

'"With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a 
substantial  distinction  of  locality  too :  for  there  are  some  cases  that 
arise  out  of  the  realm  which  ought  not  to  be  tried  anywhere  but  in 
the  country  where  they  arise  ;  as  if  two  persons  fight  in  France,  and 
both  happening  casually  to  be  here,  one  should  bring  an  action  of 
issault  against  tlie  other,  it  might  be  a  doubt  whether  such  an 
action  could  be  maintained  here  ;  because,  though  it  is  not  a  crim- 
inal prosecution,  it  must  be  laid  to  be  against  the  peace  of  the 
king ;  but  the  breach  of  the  peace  is  merely  local,  though  the  tres- 
pass against  the  person  is  transitory.  So  if  an  action  were  brought 
relative  to  an  estate  in  a  foreign  country,  where  the  question  was  a 
matter  of  title  only,  and  not  of  damages,  there  might  be  a  solid 
distinction  of  locality. 

" '  But  there  is  likewise  a  formal  distinction,  which  arises  from  the 
mode  of  trial :  for  trials  in  England  being  by  jury,  and  the  kingdom 

1  Cowpcr,  76,  77. 


268  CASES   ON   COMMON-LAW   PLEADING. 

being  divided  into  counties,  and  each  county  considered  as  a  separate 
district  or  principality,  it  is  absolutely  necessary  that  there  should 
be  some  county  where  the  action  is  brought  in  particular,  that  tliere 
may  be  a  process  to  the  sheriff  of  that  county  to  bring  a  jury  from 
thence  to  try  it.  This  matter  of  form  goes  to  all  cases  that  arise 
abroad;  but  the  law  makes  a  distinction  between  transitory  and 
local  actions.  If  the  matter,  which  is  the  cause  of  a  transitory 
action,  arise  within  the  realm,  it  may  be  laid  in  any  county,  the 
place  not  being  material ;  as  if  an  imprisonment  be  in  Middlesex, 
it  may  be  laid  in  Surrey,  and  though  proved  to  be  done  in  Middle- 
sex, it  does  not  at  all  prevent  the  plaintiff  from  recovering  dam- 
ages. The  place  of  transitory  actions  is  never  material,  except 
where  by  particular  acts  of  parliament  it  is  made  so;  as  in  the 
case  of  church-wardens  and  constables,  and  other  cases  which  re- 
quire the  action  to  be  brought  in  the  county.  The  parties,  upon 
sufficient  ground,  have  an  opportunity  of  applying  to  the  court  in 
time  to  change  tlie  venue ;  but  if  they  go  to  trial  without  it,  that 
is  no  objection. 

"  *  So  all  actions  of  a  transitory  nature  that  arise  abroad  may  be 
laid  as  happening  in  an  English  county.  But  there  are  occasions 
which  make  it  absolutely  necessary  to  state  in  the  declaration  that 
the  cause  of  action  really  happened  abroad ;  as  in  the  case  of  spe- 
cialties, where  the  date  must  be  set  forth.  If  the  declaration  state 
a  specialty  to  have  been  made  at  Westminster  in  Middlesex,  and 
upon  producing  the  deed  it  bear  date  at  Bengal,  the  action  is  gone ; 
because  it  is  such  a  variance  between  the  deed  and  the  declaration 
as  makes  it  appear  to  be  a  different  instrument.  But  the  law  has 
in  that  case  invented  a  fiction ;  and  has  said,  the  party  shall  first 
set  out  the  description  truly,  and  then  give  a  venue  only  for  form, 
and  for  the  sake  of  trial,  by  a  videlicet,  in  the  county  of  Middlesex, 
or  any  other  county.'  " 

"  In  an  action  upon  a  lease  for  rent,  etc.,  where  the  action  is  founded 
upon  the  privity  of  contract,  it  is  transitory,  and  the  venue  may  be 
laid  in  any  county,  at  the  option  of  the  plaintiff;  but  where  the 
action  is  founded  upon  the  privity  of  estate,  it  is  local,  and  the  venue 
must  be  laid  in  the  county  where  the  estate  lies.  Thus  in  an  action 
of  debt  or  covenant,  by  the  lessor  against  the  lessee,  the  action,  being 
founded  on  the  privity  of  contract,  is  transitory.  So  if  an  action  of 
debt  be  brought  by  the  lessor  against  the  executor  of  the  lessee,  in 
the  detinet  only,  it  is  transitory.  But  if  the  action  be  brought,  as 
it  may,  against  the  executor  of  the  lessee  as  assignee,  upon  the  privity 
of  estate,  in  the  debet  and  detinet,  it  is  local.  In  covenant  by  the 
grantee  of  the  reversion  against  the  lessee,  the  action  being  founded 


DECLARATIONS.  269 

on  the  privity  of  contract,  which  is  transferred  from  the  lessor  to 
the  grantee,  by  the  operation  of  the  statute  32  Hen.  VIII.  c.  34,  the 
action  is  transitory.  But  in  debt  by  the  assignee,  or  devisee  of  the 
lessor,  against  the  lessee,  which  is  founded  on  the  privity  of  estate, 
the  action  is  local.  So  if  an  action  of  debt  or  covenant  be  brought 
by  the  lessor,  or  his  personal  representatives,  or  by  the  grantee  of 
the  reversion,  against  the  assignee  of  the  lessee,  it  is  local,  and  the 
venue  must  be  laid  in  the  county  where  the  land  lies. 

"  There  are,  however,  some  actions  of  a  transitory  nature,  wherein 
the  venue  by  act  of  parliament  must  be  laid  in  a  particular  county. 
Such  are  all  actions  upon  penal  statutes,  and  actions  upon  the  case 
or  trespass  against  justices  of  peace,  mayors,  or  bailiffs  of  cities  or 
towns  corporate,  headboroughs,  port-reves,  constables,  tithing-men, 
church-wardens,  etc ,  or  other  persons  acting  in  their  aid  and  assist- 
ance, or  by  their  command,  for  anything  done  in  their  official  capa- 
city; and  also  actions  against  any  person  or  persons,  for  anything 
done  by  an  officer  or  officers  of  the  excise  or  customs,  or  others  act- 
ing in  his  or  their  aid,  in  execution  or  by  reason  of  his  or  their 
office.  In  these  actions,  the  venue,  by  various  acts  of  parliament, 
must  be  laid  in  the  county  where  the  facts  were  committed,  and 
not  elsewhere. 

"  On  the  other  hand,  the  venue,  in  a  transitory  action,  is  in  some 
cases  altogether  optional  in  the  plaintiff;  as  where  the  action  arises 
fn  Wales,  or  beyond  the  sea,  or  is  brought  upon  a  bond  or  other 
specialty,  promissory  note,  or  bill  of  exchange,  for  scandalum  mag- 
natum,  or  a  libel  dispersed  throughout  the  kingdom,  against  a 
carrier  or  lighterman,  or  for  an  escape  or  false  return,  and  in  short, 
wherever  the  cause  of  action  is  not  wholly  and  necessarily  con- 
fined to  a  single  county.  In  these  cases,  the  venue  cannot  be 
changed  by  the  court,  but  upon  a  special  ground. 

"  In  actions  by  original,  the  venue  in  the  declaration  should  be 
laid  in  the  county  where  the  writ  was  brought ;  for  otherwise,  we 
have  seen,  the  plaintiff  will  lose  his  bail.  And  it  is  a  general 
rule,  that  the  county  in  the  margin  will  help,  but  not  liurt.^ 
Hence,  if  there  be  no  venue  laid  in  the  body  of  the  declaration, 
reference  must  be  had  to  the  margin ;  but  where  a  proper  venue  is 
laid  in  the  body,  the  county  in  the  margin  will  not  vitiate  it. 

"  In  actions  by  bill,  against  common  persons,  the  declaration 
begins  by  stating  the  defendant  to  be  in  custody  of  the  marshal ; 
or  if  he  be  in  custody  of  the  sheriff,  or  bailiff,  or  steward  of  a 

1  Lord  Hardwicke  was  of  opinion,  that  the  word  ss.  in  the  margin  of  the  declara- 
tion was  not  originally  meant  to  signify  the  county,  but  was  only  a  denotation  of  each 
section  or  paragraph  in  the  record.     Cas.  temp.  Hardw.  344. 


270  CASES    ON    COMMON-LAW    PLEADING. 

franchise,  having  the  return  and  execution  of  writs,  it  should  al- 
lege in  wliose  custody  he  is,  at  the  time  of  the  declaration,  by 
virtue  of  the  process  of  the  court,  at  the  suit  of  the  plaintiffs.  If 
the  action  be  brought  by  or  against  particular  persons,  as  assignees, 
executors,  etc.,  the  special  character  in  which  they  sue,  or  are  sued, 
should  be  set  forth  in  the  beginning  of  the  declaration.  And  in 
actions  against  attorneys,  instead  of  stating  that  they  are  in  the 
custody  of  the  marshal  or  sheriff,  it  should  be  stated  that  they  are 
present  in  court ;  or  in  actions  against  peers  or  members  of  the 
House  of  Commons,  that  they  have  privilege  of  parliament." 


WALTON  V.  KERSOP  AND  ANOTHER. 

In  the  Common  Pleas.     1767. 

Reported  2  Wilson,  354. 

Replevin,  and  declares  for  taking  his  cattle  at  M.  Defendant  pleads  non 
cepil  modo  et  forma ;  plaintiff  proved  the  cattle  vrere  in  the  defendant's  cus- 
tody at  M.  Defendant  proved  they  were  originally  taken  at  H.  Judgment 
for  the  plaintiff. 

Eeplevin.  The  plaintiff  declares  for  taking  his  cattle  in  Market- 
street  ward ;  the  defendant  pleads  the  general  issue  non  cepit  modo 
&  forma  ;  this  cause  was  tried  before  Mr.  Justice  Gould  at  the 
last  assizes  for  Northumberland ;  when  the  plaintiff  proved  that 
the  cattle  were  in  the  custody  and  possession  of  the  defendant  at 
Market-street,  where  he  was  driving  them  to  the  pound ;  the  de- 
fendant proved  that  he  first  and  originally  took  them  at  Hardball, 
in  the  parish  of  Warden,  and  was  driving  them  through  Market- 
street  unto  the  pound ;  it  was  insisted  at  the  trial,  that  the  plain- 
tiff had  not  proved  his  declaration,  that  the  cattle  were  taken  at 
Market-street,  as  it  was  alleged  therein,  for  that  the  defendant 
had  proved  they  were  first  taken  at  another  place,  viz.  at  Hardball, 
in  the  parish  of  Warden.  There  was  a  verdict  for  the  plaintiff  sub- 
ject to  the  opinion  of  the  court. 

Sergeant  Glynn,  for  the  plaintiff,  insisted  that  the  plaintiff  had 
well  proved  the  taking  at  Market-street,  as  laid  in  the  declaration, 
for  he  proved  the  cattle  were  there  in  the  defendant's  custody, 
and  although  it  may  be  true  that  the  defendant  originally  took 
them  at  Hardball,  yet,  as  he  the  plaintiff  was  unable  to  prove  the 
taking  there,  it  would  be  very  unreasonable  and  inconvenient  if  he 
was  obliged  to  lay  the  taking  there.  That  the  defendant  ought  to 
have  pleaded  in  abatement,  and  alleged  that  they  were  taken  at 
Hardball,  absque  ?ioc  that  they  were  taken  at  Market-street,  upon 


DECLARATIONS.  271 

which  the  plaintiff  might  have  taken  issue,  or  confessed  the  plea, 
and  justified  the  taking  at  Hardhall,  and  driving  them  to  Market- 
street  towards  the  pound ;  and  he  insisted  that  wherever  the 
defendant  has  the  cattle  wrongfully  in  his  custody  that  is  a  wrong- 
ful taking  at  that  particular  place  ;  as  in  the  case  of  larceny  com- 
mitted in  one  county,  and  the  felon  flies  with  the  goods  into  another 
county,  it  is  a  felony  in  both  counties,  and  he  may  be  tried  in 
either  county. 

Sergeant  Burland,  for  the  defendant,  insisted  that  upon  the  plea 
of  non  cepit  modo  et  forma,  the  defendant  may  prove  the  taking 
was  at  a  different  place  from  that  laid  in  the  declaration ;  and  for 
that  purpose  cited  Johnson  v.  Wollyer,  1  Stra.  508 ;  2  Mod.  199. 
Anonym.,  by  Lord  North,  C.  J.,  if  the  plaintiff  alleges  the  taking 
at  A.,  and  they  were  taken  at  B.,  the  defendant  may  plead  non 
cepit  modo  et  forma,  hni  then  he  can  have  no  return,  for  if  he  would 
have  a  retorn'  habendo,  he  must  deny  the  taking  where  the  plaintiff 
hath  laid  it,  and  allege  another  place  in  his  avowry.  He  also  said 
that  in  replevin  the  first  place  of  taking  is  the  only  material  place, 
and  must  be  laid  in  the  declaration,  and  it  is  not  like  the  case  of 
larceny  above  mentioned. 

Wilmot,  Chief  Justice.  At  this  day  it  is  very  clear  that  the  vill 
and  place  where  the  cattle  are  taken  must  be  laid  in  the  declara- 
tion, if  there  is  no  place  defendant  may  demur,  but  here  is  a  place 
laid  ;  and  it  was  proved  the  cattle  were  in  defendant's  possession 
there;  and  though  originally  defendant  took  them  at  another  place, 
yet  if  he  took  them  wrongfully  at  first,  the  wrong  is  continued  to 
any  place  where  the  defendant  has  them.  1  Stran.  508,  is  only  a 
case  at  nisi  prius,  and  2  Mod.  199,  a  dictum  of  Lord  North;  and 
neither  of  those  cases  are  like  this,  for  here  is  a  sufficient  proof  (in 
my  opinion)  of  the  plaintiff's  declaration,  to  wit,  that  the  cattle 
were  taken  at  Market-street;  this  case  is  very  clear,  and  like  the 
case  mentioned  of  larceny,  the  wrong  continues  wherever  the  de- 
fendant has  the  cattle  ;  and  I  am  quite  satisfied  the  defendant's  evi- 
dence was  irrelevant  and  immaterial  on  this  issue,  and  ought  not 
to  have  been  admitted,  unless  the  defendant  had  pleaded  in  abate- 
ment. And  of  this  opinion  was  the  whole  court,  and  the  Postea 
was  ordered  to  be  delivered  to  the  plaintiff.  See  Cro.  Eliz.  896 ; 
Hob.  16  ;  Moor,  678.  See  the  case  of  Kiley  v.  Parkhurst,  ante,  Trin. 
21-22  Geo.  11.  [reported  1  Wilson,  219]  cited  by  Bathurst,  Justice. 


272  CASES    ON   COMMON-LAW    PLEADING. 

[^Extract  fro7n\ 

HALL   V.   WINCKFEILD. 

Ix  THE  King's  Bench. 

Reported  Hobart,  195  a. 

"  Again  the  books  are,  and  I  agree,  that  if  a  man  recover  damage 
or  debt  in  the  common  pleas,  upon  trespass  or  obligation  laid  in 
another  county,  if  the  plaintiff  will  bring  an  action  of  debt  for  the 
sum  recovered,  he  must  lay  it  in  the  county  of  Mid.  and  not  in  the 
county  where  the  first  action  arose ;  and  the  reason  is  apparent ;  for 
he  must  count  upon  the  record,  by  which  it  appears  to  the  court 
that  the  cause  of  this  action  ariseth  in  Mid.  where  the  judgment 
was  given,  and  the  record  for  that  trespass  that  was  done,  and  that 
obligation  that  was  made,  in  another  county,  is  not  the  cause  of 
this  action,  but  the  judgment,  which  hath  made  novationem  con- 
tractus, which  begins  there,  and  regularly  it  is  true  that  every  ac- 
tion must  be  brought  in  that  county  wiiere  by  the  record  it  appears 
that  the  cause  of  action  began,  which  sometimes  may  admit  of  an 
election ;  as  where  the  admiral  court  sits  in  Mid.  and  summons  a 
party  in  Essex,  the  action  upon  the  statute  may  be  in  either  of 
both  counties." 

THE   COMMENCEMENT. 

Presented  Tidd's  Practice,  Vol.  I.  page  375. 

"  In  account,  covenant,  debt,  annuity,  detinue,  and  replevin,  where 
the  original  is  a  summons,  the  declaration  by  original  writ  begins 
by  stating  that  the  defendant  was  summoned  to  answer ;  in  actions 
on  the  case,  trespass,  ejectment,  etc.,  where  the  original  is  an  at- 
tachment, it  states  that  he  was  attached  to  answer.  But  where 
by  the  declaration  it  appears,  that  tlie  defendant  was  summoned 
instead  of  attached,  or  vice  versa,  the  defendant  cannot  demur, 
without  craving  oyer  of  the  original,  and  setting  it  forth,  in  order 
to  show  that  it  does  not  warrant  the  declaration. 

"  It  was  formerly  usual  for  the  declaration  by  original  to  repeat 
the  whole  of  the  original  writ.  But  this  practice  being  productive 
of  great  and  unnecessary  prolixity,  a  rule  of  court  was  made,  that 
'  declarations  in  actions  upon  the  case  and  general  statutes,  other 
than  debt,  repeat  not  the  original  writ,  but  only  the  nature  of  the 
action  ;  as  that  the  defendant  was  attached  to  answer  the  plaintiff, 
in  a  plea  of  trespass  upon  the  case,  or  in  a  plea  of  trespass  and  con- 


DECLARATIONS.  273 

tempt,  against  the  form  of  the  statute.'  And  even  in  trespass  vi  et 
arniis,  commenced  by  original,  it  has  been  deemed  sufficient,  on  a 
general  demurrer,  to  state  in  the  declaration  that  the  defendant 
was  attached  to  answer  the  plaintiff  in  a  plea  of  trespass,  without 
setting  forth  the  circumstances." 

THE   CAUSE   OF   ACTION. 

I.    COXTRACTS. 

Forms  and  Requisites  of  Declarations  Mx  Contractu. 

The  student  who  seeks  to  arrive  at  a  clear  knowledge  of 
the  requisites  of  the  several  declarations  at  common  law  by 
examining  the  precedents  in  the  books  will  be  confused  hope- 
lessly by  the  mass  of  surplusage  in  the  pleadings.  Although 
the  rule  against  surplusage  ''  appears  to  have  prevailed  at 
the  earliest  periods,  it  seems  to  have  been  nearly  forgotten 
during  a  subsequent  period  of  our  legal  history."  ^ 

It  is  believed  that  in  separating  surplusage  in  the  prece- 
dents from  required  allegations,  the  student  will  be  materially 
aided  by  comparing  the  brief  declarations  in  use  under  the 
Massachusetts  Practice  Act  with  those  of  the  common  law, 
in  the  light  of  the  following  case. 

ABBA    READ   AND   ANOTHER   v.   WILLIAM   SMITH. 

Supreme  Judicial  Court,  Massachusetts.     1861. 

Reported  I  Allex,  519. 

The  substantive  averments  required  in  declarations  at  common  law  and 
under  the  Massachusetts  Practice  Act  are  identical. 

Contract.  The  first  count  was  for  goods  sold,  as  by  account  an- 
nexed. The  second  count  was  as  follows  :  "And  the  plaintiffs  say 
they  made  a  contract  with  the  defendant,  wherein  and  whereby 
they  agreed  with  the  defendant  to  send  him  certain  barrels  and 
half-barrels  containing  beer,  at  his  request,  and  did  do  so  ;  and  the 
defendant,  in  consideration  thereof,  agreed  to  return  the  same  or 
pay  therefor ;  and  the  plaintiffs  say  the  defendant  did  not  return 
the  said  barrels,  but  that  they  delivered  to  him  one  hundred  and 
thu-ty-nine  barrels  and  forty-two  half-barrels,  which  the  said  de- 

1  Perry,  Pleading,  412. 
18 


274 


CASES   ON   COMMON-LA.W   PLEADING. 


fendant  has  not  returned,  and  that  the  defendant  owes  the  plaintiffs 
therefor  two  dollars  for  each  barrel,  and  one  dollar  and  fifty  cents 
for  each  half-barrel."  The  defendant  demurred  to  the  second  count, 
assigning  for  cause  that  it  did  not  allege  any  time  within  which  the 
barrels  and  half-barrels  were  to  be  returned,  or  any  request  for  their 
return  ;  but  Brigham,  J.  overruled  the  demurrer.  The  defendant 
then,  "  reserving  the  right  to  be  further  heard  on  his  demurrer," 
filed  an  answer  to  this  count,  denying  the  contract  therein  set  forth. 
At  the  trial  in  the  superior  court,  it  appeared  that  the  plaintiffs 
were  brewers,  living  in  Troy,  in  the  State  of  New  York,  and  that 
they  sold  ale  to  the  defendant,  who  lived  in  Boston,  and  sent  it  to 
him  in  barrels  and  half-barrels,  in  large  quantities.  The  only  evi- 
dence of  the  agreement  as  to  the  barrels  and  half-barrels  was  con- 
tained in  the  depositions  of  the  two  plaintiffs,  one  of  whom  stated  it 
as  follows  :  "  He  (the  defendant)  agreed  to  return  all  the  casks 
that  we  should  send  him  ;  or,  if  for  any  reason  he  should  not  return 
all,  then  he  agreed  to  pay  for  them  at  the  rate  of  two  dollars  for 
each  barrel  and  one  dollar  and  fifty  cents  for  each  half -barrel ; "  and 
the  other  plaintiff  stated  it  substantially  in  the  same  way. 

The  defendant  moved  for  a  nonsuit  on  the  ground  of  a  variance 
between  the  declaration  and  the  proof,  but  the  court  ruled  that 
there  was  no  variance. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  the  defendant 
alleged  exceptions. 

E.  M.  Bigelow,  for  the  defendant. 
T.  H.  Eussell,  for  the  plaintiffs. 

Chapman,  J.  If  the  verdict  had  been  upon  the  general  count  it 
must  have  been  sustained,  for  the  evidence  tended  to  prove  an  exe- 
cuted contract  of  sale  and  delivery.  Whenever  by  the  terms  of  the 
agreement  the  casks  became  the  property  of  the  defendant,  they 
were  his  by  sale  and  delivery ;  and  nothing  remained  to  be  done 
but  to  pay  the  price.  In  such  case  a  general  count  is  sufficient, 
the  claim  being  merely  for  money,  and  founded  in  a  past  or  exe- 
cuted consideration.  1  Chit.  PI.  316,372;  Felton  v.  Dickinson, 
10  Mass.  287;  Baker  v.  Corey,  19  Pick.  496;  Holbrook  v.  Dow,  1 
Allen,  397. 

But  the  verdict  is  upon  the  special  count,  which  declares  upon 
the  contract  as  executory.  In  such  case  the  rule  of  pleading  was, 
before  the  Practice  Act,  that  the  declaration  must  allege  all  the  cir- 
cumstances necessary  for  the  support  of  the  action,  and  contain  a 
full,  regular,  and  methodical  statement  of  the  injury  which  the 
plaintiff  has  sustained,  with  such  precision,  certainty,  and  clearness 
that  the  defendant,  knowing  what  he  is  called  upon  to  answer,  may 


DECLARATIONS.  275 

be  able  to  plead  a  direct  and  unequivocal  plea;  and  that  the  jury- 
may  be  able  to  give  a  complete  verdict  upon  the  issue,  and  the 
court,  consistently  with  the  rules  of  law,  may  give  a  certain  and 
distinct  judgment  upon  the  premises.     1  Chit.  PI.  285. 

The  Practice  Act  [of  Massachusetts]  has  made  no  change  in  this 
respect ;  for  although  by  this  act  the  facts  may  be  briefly  stated,  yet 
all  the  facts  must  be  stated  which  are  necessary  to  constitute  the 
cause  of  action.  Hollis  v.  PJchardson,  13  Gray,  392.  The  principal 
changes  made  by  that  act  in  respect  to  declarations  were,  (1)  It 
adopted  a  suggestion  which  was  recently  made  by  Mr.  Long  to  the 
British  commissioners,  that  the  number  of  personal  actions  should 
be  reduced  to  two.  (2)  That  no  averment  need  be  made  wliich 
the  law  does  not  require  to  be  proved.  As  incident  to  these  changes 
some  other  formal  changes  were  made.  But  the  act  distinctly  re- 
quires that  the  substantive  facts  necessary  to  constitute  the  cause 
of  action  shall  be  set  forth  with  substantial  certainty.  And  though 
it  changes  the  forms  of  pleading  and  dispenses  with  technicalities, 
it  is  still  important  in  framing  declarations  and  answers,  so  as  to 
present  causes  properly  for  trial,  that  the  principles  of  special  plead- 
ing should  be  carefully  regarded. 

By  the  contract  appearing  in  the  bill  of  exceptions  as  executory, 
the  casks  were  to  be  returned  in  a  reasonable  time  or  upon  request. 
If  in  a  reasonable  time,  as  the  evidence  seems  to  show,  the  plaintiff 
must  prove  that  a  reasonable  time  had  elapsed ;  and  this  is  a  sub- 
stantive fact  necessary  to  constitute  his  cause  of  action.  He  ou<dit 
therefore  to  have  alleged  it. 

If  they  were  to  be  returned  upon  request,  the  request  was  a  sub- 
stantive fact  to  be  proved,  and  therefore  it  must  be  alleged.  The 
declaration  omits  to  state  any  time  within  which  they  were  to  be 
returned  or  paid  for.  Non  constat  that  it  was  to  be  before  the  com- 
mencement of  the  action.  The  allegation  that  the  defendant  owes 
the  plaintiff  therefor  is  the  statement  of  a  conclusion  of  law,  and 
not  of  a  substantive  fact.  Hollis  v.  Richardson,  ubi  supra  [13  Gray, 
392].  This  allegation  does  not  supply  the  defect.  The  defendant's 
demurrer  entitles  him  to  take  advantage  of  this  defect.  If  a  defend- 
ant chooses  to  go  to  trial  upon  a  defective  declaration  without  de- 
murring to  it,  or  moving  the  court  for  an  order  upon  the  plaintiff  to 
make  his  allegations  more  full  and  particular,  it  is  to  be  presumed 
that  he  was  sufficiently  informed  as  to  the  plaintiffs  case,  and  the  rule 
is  proper  that  he  shall  not  then  be  permitted  to  disturb  the  verdict. 
And  the  same  is  true  where  a  plaintiff  chooses  to  go  to  trial  upon  a 
defective  answer.  But,  if  the  defect  is  pointed  out  beforehand  in  a 
proper  way,  the  pleader  must  amend  or  proceed  at  his  peril 


276  CASES   ON   COMMON-LAW   PLEADING. 

Anotlier  objection  taken  at  the  trial  was  that  there  was  a  variance 
between  the  declaration  and  the  proof.  The  declaration  does  not 
state  that  any  price  was  agreed  upon,  but  left  it  as  a  quantum  volehant. 
The  allegation  that  the  defendant  owed  the  plain tifi'  a  certain  sum 
for  the  casks  was  not  an  allegation  that  this  sum  was  the  price 
agreed.  But  the  proof  was  that  a  price  had  been  agreed  upon  ;  and 
this  variance  was  material.  Exceptions  sustained.^ 

[It  seems  to  follow,  then,  that  the  substantive  averments  in  dec- 
larations under  the  Practice  Act  of  Massachusetts  and  under  the 
common  law  are  identical :  to  determine  one  is  to  determine  both  ; 
and  the  difference  between  the  two  is,  that  the  Practice  Act  ex- 
cludes only  the  fictitious  and  merely  formal  averments  which  the 
common  law  requires. 

Let  X  equal  the  requisites  of  a  declaration  at  common  law,  with 
its  substantive  averments  necessary  to  make  out  a  'prima  facie 
case,  and  its  formal  averments  and  fictions.  Let  y  equal  the  re- 
quisites of  a  declaration  under  the  Practice  Act  of  Massachusetts, 
with  its  substantive  averments  necessary  to  make  out  o.  prima  facie 
case,  and  its  absence  of  formal  averments  and  fictions.  Then  x 
minus  y  will  equal  the  formal  averments  and  fictions  peculiar  to 
the  declaration  of  the  common  law  and  surplusage.  Ascertain  the 
fictions  peculiar  to  the  several  actions ;  ascertain  their  merely 
formal  averments ;  and  one  has  the  basis  of  a  valid  declaration, 
minus  surplusage.  —  Ed.] 

Debt  on  a  Simple  Contract. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  in  Massachusetts.     Let  it  equal  y. 

y.  Goods  sokl.  "  And  the  plaintiff  says  that  the  defendant  owes 
him  Si 00  for  goods  sold  b\-  the  plaintiff  to  the  defendant."  Public 
Statutes,  Massachusetts,  c.  167,  p.  976,  form  3. 

1  By  the  Practice  Act  of  Massachusetts  it  is  provided  that 

"There  shall  be  only  tliree  divisions  of  personal  actions: 

"First,  Contract,  wliich  sliail  include  actions  formerly  known  as  assumpsit,  cove- 
nant, and  debt,  except  actions  for  penalties. 

"  Second,  Tort,  wliich  shall  include  actions  formerly  known  as  trespass,  trespass  on 
the  case,  trover,  and  actions  for  penalties.  QNote  that  detinue  is  not  mentioned.  It 
never  was  sanctioned  in  Massachusetts.] 

"Third,  Replevin."     Revised  Laws,  Massachusetts,  c.  173,  sec.  1. 

"  A  declaration  in  a  personal  action  shall  conform  to  the  followinj^  requirements : 

"  Second,  It  shall  state  concisely  and  with  substantial  certainty  the  substantive 
facts  necessary  to  constitute  the  cause  of  action. 

"  Third,  it  need  not  aver  a  fact  which  is  not  required  by  law  to  be  proved."  Re- 
vised Laws,  Massachusetts,  c.  173,  sec.  6. 


DECLAKATIOXS.  277 

The  following  is  a  valid   declaration  at  common   law. 
Let  it  equal  x. 

X.     In  the  Common  Pleas. 

The  12th  day  of  June,  1845. 

Somersetshire,  to  wit.  —  Johnathan  Gregory,  (the  plaintiff  in  this 
suit),  b}'  Abraham  P^lliot,  his  attorne\-,  complains  of  James  Johnson 
(the  defendant  in  this  suit)  who  has  been  summoned  to  answer  the  said 
plaintiff  in  an  action  of  debt,  and  he  demands  of  tlie  said  defendant  tiie 
sum  of  £500,  which  he  owes  to  and  unjustly  detains  from  the  said  plain- 
tiff. For  that  whereas,  the  said  defendant  heretofore,  to  wit,  on  the 
first  da}-  of  December,  in  the  year  of  Our  Lord,  1844,  was  indebted  in 
£500,  for  goods  then  sold  and  delivered  by  the  said  plaintiff  to  the  said 
defendant,  at  his  request,  to  be  paid  by  the  said  defendant  to  the  said 
plaintiff  on  request.  Whereby,  and  by  reason  of  the  nonpayment 
thereof,  an  action  hath  accrued  to  the  said  plaintiff  to  demand  and 
have  of  and  from  the  said  defendant  the  said  sum  of  £500,  above  de- 
manded. Yet  the  said  defendant,  though  often  requested,  hath  not 
paid  the  said  sum  of  £500,  above  demanded,  or  any  part  thereof,  to  the 
damage  of  the  said  plaintiff  of  £50,  and  therefore  he  brings  this  suit,  etc. 
Warren,  Law  Studies,  583. 

Both  declarations  contain 

(1)  A  statement  of  the  right  on  the  part  of  the  plain- 

tiff (i.  e.  that  the  plaintiff  delivered  up  to  the 
defendant  a  chattel  for  a  sum  certain)  and 

(2)  A  statement  of  the  wrong  or  violation  of  the  right 

by  the  defendant  (i.  e.  that  the  defendant  does 
not  deliver  up  the  sum  certain.     This  is  com- 
prehended in  the  first  declaration  by  "owes"). 
Subtract  these  substantive  averments  in  y  from  x.     There 
remain  in  addition  to  the  averments  indicated 

(3)  An  allegation  of  breach. 

(4)  An  allegation  of  damage. 

Formal  averments  common  to  all  tlec-larations  are  here  in  all  cases  left  unmentioned. 

GOODCHILD   V.   PLEDGE. 
In  the  Exchequer.     183G. 
Reported  in  1  Meeson  &  Welsbt,  363. 
The  importance  of  the  allegation  of  breach  in  a  declaration  in  debt. 

Debt,  in  the  sum  of  £20,  for  goods  sold  and  delivered  ;  for  board, 
lodging,  and  other  necessaries,  found  and  provided  by  the  plaintiff 


278  CASES    ON    COMMON-LAW   PLEADING. 

for  the  servant  of  the  defendant,  and  at  his  request ;  and  on  an 
account  stated.  Pleas  :  first,  nitnquam  indebitatus  ;  secondly,  as  to 
the  first  count,  that  before  the  commencement  of  the  suit,  and 
when  the  said  sum  of  £20  in  that  count  mentioned  became  due  and 
payable,  to  wit,  on  the  1st  of  January,  1836,  the  defendant  paid  to 
the  plaintifi'  the  said  sum  of  £20,  according  to  the  defendant's  said 
contract  and  liability  in  the  said  first  count  mentioned;  concluding 
to  the  country.  The  latter  plea  was  specially  demurred  to,  on  the 
ground  that  it  ought  to  have  concluded  with  a  verification. 

Mansel,  in  support  of  the  demurrer,  relied  on  Ensall  v.  Smith,  1 
C,  M.  &  R.  522;  s.  c.  nomine  Ansel!  v.  Smith,  3  Dowl.  P.  C.  193. 
The  plea  of  payment  is  clearly  treated  in  the  new  rules  as  a  plea  in 
confession  and  avoidance.  It  makes  no  difference  that  it  is  stated 
here  that  the  defendant  paid  when  the  money  became  due  according 
to  the  contract :  he  still  admits  the  cause  of  action.  The  plea  of 
solvit  ad  diem  is  an  analogous  one.  [Parke,  B.  There  it  is  clearly 
new  matter,  being,  in  effect,  a  plea  of  performance  of  the  condition 
in  the  bond.]  The  plaintiff  has  a  right  to  an  answer  to  the  allega- 
tion of  payment  in  the  plea ;  and  if  it  be  true  that  the  money  was 
so  paid,  he  may  enter  a  nolle  prosequi  as  to  that  part  of  the  demand, 
and  go  on  for  the  rest. 

Ogle,  contra.  This  plea  is  quite  distinguishable  from  that  in 
Ensall  V.  Smith.  Here  the  declaration  is  in  debt,  not  in  assumpsit ; 
and  the  defendant  meets  the  claim  by  stating  that,  when  the  debt 
accrued,  he  paid  the  money  according  to  his  contract  and  liability. 
In  Ensall  v.  Smith,  the  plea  was  merely  that  the  defendant  has 
paid  the  same ;  but  here,  if  the  payment  was  after  breach,  or  after 
request,  it  could  not  be  according  to  the  contract  and  liability.  It 
is  a  simple  denial  of  the  breach,  not  introducing  new  matter,  and 
therefore  rightly  concludes  to  the  country.  The  defendant  shows 
that  there  never  was  any  suable  cause  of  action,  because  the 
moment  the  debt  accrued,  he  paid  it.  [Parke,  B.  Is  the  state- 
ment of  the  breach  in  debt  anything  more  than  a  mere  form  ? 
The  moment  the  goods  are  delivered,  is  there  not  a  cause  of  action, 
throwing  the  proof  of  its  discharge  on  the  defendant  ?  If  the 
breach  is  mere  form,  you  cannot  traverse  it ;  then  your  plea  is 
in  discharge,  and  ought  to  conclude  with  a  verification.  Suppose 
nil  debet  pleaded,  under  the  old  form  ;  would  it  not  be  sufficient 
to  prove  the  debt  contracted  ?  The  new  general  issue,  that  the 
defendant  never  was  indebted,  that  is,  at  no  instant  of  time,  was 
framed  for  the  express  purpose  of  making  all  these  defences  plead- 
able by  way  of  discharge.]  This  plea  shows  that  the  plaintiff  never 
was  entitled  to  sue. 


DECLARATIONS.  279 

Lord  Abinger,  C.  B.  If  this  is  payment,  as  it  undoubtedly  is,  it 
is  a  plea  in  confession  and  avoidance  within  the  new  rules. 

Parke,  B.  I  admit  that  this  plea  is  distinguishable  from  that  in 
Ensall  V.  Smith.  But  here  also  the  defendant  includes  in  the  plea  a 
something  that  is  not  alleged  in  the  declaration  ;  because  it  is  not 
stated  in  the  declaration  that  the  defendant  did  not  pay  according 
to  the  contract.  I  think  it  will  be  found,  on  looking  into  the  cases, 
that  the  statement  of  the  breach  is  mere  form  ;  if  so,  the  plea  admits 
the  debt,  and  is  a  plea  in  confession  and  avoidance ;  and  it  is  so 
treated  in  the  new  rules.  Under  the  general  issue,  as  now  framed, 
you  deny  the  existence  of  a  debt  at  any  one  time  :  if  you  admit  a 
debt,  you  must  plead  every  matter  specially  by  which  you  seek  to 
discharge  it. 

Alderson,  B.  If  this  is  payment,  it  is  payment  of  a  debt ;  then 
it  admits  a  debt ;  therefore  it  is  in  discharge,  not  in  denial. 

Ogle  then  obtained  leave  to  amend,  on  payment  of  costs. 

Per  Lord  Mansfield  in  Cuming  v.  Sibby,  4  Burrows,  at  2490 
(1769) :  "  There  are  no  damages  to  be  given  in  these  popular  actions 
[i.  e.  actions  of  debt  by  common  informers  to  recover  money  upon 
penal  statutes].  This  statute  gives  costs  indeed ;  but  here  the 
damages  and  costs  are  blended  together." 

"  The  damages  in  an  action  of  debt  are  in  general  merely  nom- 
inal, and  not,  as  in  assumpsit,  the  principal  object  of  the  suit,  and 
therefore  a  small  sum,  as  £10,  is  usually  inserted."  1  Chitty, 
Pleading,  374  [14th  Am.  ed.]. 

Strike  out  all  but  1,  2,  3,  and  4  from  the  declaration  x. 
The  uneliminated  matter  is  the  basis  of  a  valid  declara- 
tion at  common  law/ 

Covenant. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  in  Massachusetts.     Let  it  equal  y. 

1  Declaration  in  Debt.  —  Expanded  Statement:  1.  (a)  A  .statement  of  fact  consist- 
ing of  some  act  on  the  plaintiff's  part,  as  money  paid  by  plaintiff  for  defendant's  nse, 
goods  sold,  or  work  done,  or  (b)  some  act  on  defendant's  part,  as  signing  and  sealing 
a  specialty  promising  to  pay  plaintiff  a  certain  sum  of  money,  or  (c)  some  judgment 
or  other  record  in  favor  of  plaintiff  against  defendant,  or  (d)  some  statute  providing 
a  penalty  together  with  the  recital  of  such  facts  as  show  that  defendant  has  subjected 
himself  to  the  penalty,  and  that  plaintiff  has  the  right  to  recover,  or  any  other  facts 
on  which  a  duty  would  arise  on  defendant's  part  to  pay  plaintiff  a  sum  certain.  2. 
A  breach  of  defendant's  duty  to  pay.  Ex.  Demand  and  refusal.  That  this  is  mere 
matter  of  form  see  Goodchild  v.  Pledge,  1  Meeson  and  Welsby,  363.  3.  Damages. 
At  the  later  common  law  this  is  form  also.     See  remarks  of  Deau  Ames,  supra,  235. 


2S0  CASES   ON    COMMON-LAW    PLEADING. 

"  And  the  plaintiff  says  the  defendant  delivered  to  hira  a  deed,  a  cop}' 
whereof  is  herennto  annexed  : 

''And  the  defendant  was  not  seised  in  fee  of  a  part  of  the  land  de- 
scribed as  follows  (describing  it),  but  the  same  was  held  adversel}'  by 
one  L.  M. ;  and  the  residue  of  said  land  was  not  free  from  incumbrances, 
but  was  subject  to  a  mortgage  to  one  S.  T.,  to  secure  the  pa3-ment  of 
six  hundred  dollars. 

"  And  the  defendant  has  not  warranted  and  defended  the  premises 
against  the  rightful  claims  of  all  persons,  but  one  W.  S.  had  a  right  of 
dower  therein,  and  has  compelled  the  plaintiff  to  assign  the  same  to 
her."     Public  Statutes,  Massachusetts,  c.  167,  p.  977,  form  3. 

The  following  is  a  valid  declaration  at  common  law. 
Let  it  equal  x. 

ON   A   NOTE  UNDER   SEAL. 

"  For  that  the  said  T.,  on  etc.,  at  etc.,  by  his  deed  of  that  date,  in  court 
to  be  produced,  covenanted  with  the  plaintiff  to  pay  him  or  his  order, 
the  sum  of  $100,  on  demand,  with  interest  for  the  same  until  paid  ;  yet 
the  said  T.,  though  often  requested,  hath  not  paid  the  said  sum  of  $100, 
nor  the  interest  thereof,  but  wholly  neglects  and  refuses  so  to  do.  And 
so  the  said  T.  his  said  covenant  hath  not  kept,  but  hath  broken  the 
same.     R.  Dana."     Oliver,  Precedents,  236. 

Both  declarations  contain  statements  (excepting  the  f OLirth 
here  made),  as  follows  : 

1.  That  defendant  made  with  plaintiff  a  contract  under 

seal. 

2.  Profert  of  such  contract  or  excuse  for  not  making  it.-' 

3.  Recital  in  words  or  substance  of  so  much  of  the 

covenant  as  is  essential  to  show  a  cause  of  ac- 
tion. 

4.  Performance  of  all  conditions  precedent  or  excuse 

of  nonperformance.  (No  such  conditions,  how- 
ever, appear  in  the  forms  here  given.) 

5.  Breach  —  In  ordinary  covenants  several  breaches 

may  be  assigned  in  one  count.  In  penal  bonds, 
only  one  breach  may  be  laid  in  one  count, 
otherwise  the  count  would  be  bad  for  duplicity. 

6.  Damages. 

1  In  Massachusetts  to-day,  it  is  enough  to  allege  sufficient  of  the  substance  of  the 
deed  to  maintain  the  action,  without  making  profert. 


DECLARATIONS.  281 

Subtract  y  from  x.  The  result  is  zero.  Therefore  the 
common-law  declaration  in  covenant  contains  no  fictions, 
and  that  here  given,  no  superfluous  averments. 


General  Assumpsit. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  of  Massachusetts : 

"And  the  plaintiff  says  the  defendant  owes  hira  $1,000  for  goods 
sold  by  the  plaintiff  to  the  defendant."  Public  Statutes,  Massachusetts, 
c.  167,  p.  976. 

The  following  is  a  valid  declaration  at  the  common  law : 

"  Durham,  to  wit,  John  Peacock,  late  of  the  city  of  Durham,  in  said 
count}',  Alderman,  was  attached  to  answer  Richard  Bell  and  Benjamin 
Kendal,  of  a  plea  wherefore,  whereas  the  said  John,  on  the  1 1th  day  of 
November,  in  the  17th  year  of  the  reign  of  our  lord  Charles  the  Second, 
now  king  of  England,  etc.,  at  the  cit}'  of  Durham,  in  the  said  count}-, 
was  indebted  to  the  said  Richard  and  Benjamin  in  £.39  of  lawful 
money  of  England,  for  divers  wares  and  merchandises  by  the  said 
Richard  and  Benjamin  before  that  time  sold  and  delivered  to  the  said 
John  Peacock  at  his  special  instance  and  request ;  and  being  so  in- 
debted, he  the  said  John,  in  consideration  thereof,  undertook,  and  then 
and  there  faithfully  promised  the  said  Richard  and  Benjamin,  that 
he  the  said  John  Peacock  would  well  and  faithfully  pay  and  content 
the  said  £39  to  the  said  Richard  and  Benjamin  when  he  should  be 
thereunto  requested  ;  yet  the  said  John  not  regarding  his  said  promise 
and  undertaking  in  form  aforesaid  made,  but  contriving  and  fraudu- 
lently intending  craftily  and  subtly  to  deceive  and  defraud  them  the 
said  Richard  and  Benjamin  of  the  said  £39  has  not  yet  paid  the  said 
£39  or  any  penny  thereof,  to  the  said  Richard  and  Benjamin,  or  any 
ways  contented  them  for  the  same,  (although  so  to  do  the  said  John 
afterwards,  to  wit,  on  the  last  day  of  November,  in  the  said  17th  year 
of  the  reign  of  our  lord  Charles  the  Second,  now  king  of  England, 
etc.,  at  the  city  of  Durham,  in  the  said  county,  was  often  requested  by 
the  said  Richard  and  Benjamin),  but  to  pay  the  same  to  them,  or  in 
any  ways  to  content  them  for  the  same,  has  altogether  refused,  and  still 
refuses,  to  the  damage  of  the  said  Richard  and  Benjamin  of  £40,  etc. 
And  whereupon  the  said  Richard  and  Benjamin,  by  Ralph  Adamson, 
their  attorney,  complain,  that  whereas  the  said  John,  on  the  11th  day 
of  November,  in  the  17th  year  of  the  reign  of  our  lord  Charles  the 
Second,  now  king  of  England,  etc.,  at  the  city  of  Durham,  in  the  said 
county,  was  indebted  to  the  said  Richard  and  Benjamin  in  £39  of  law- 


282  CASES    ON   COMMON-LAW    PLEADING. 

fill  mone}'  of  England,  for  divers  wares  and  merchandises  b}-  the  said 
Richard  and  Benjamin  before  the  time  sold  and  delivered  to  the  said 
John  Peacock  at  liis  special  instance  and  request;  and  being  so  in- 
debted, he  the  said  John,  in  consideration  thereof,  undertook,  and  then 
and  there  faithfully  promised  the  said  Richard  and  Benjamin,  that  he 
the  said  John  Peacock  would  well  and  faithfull}*  pa}-  and  content  the 
said  £39  to  the  said  Richard  and  Benjamin  when  he  should  be  there- 
unto requested  ;  yet  the  said  John,  not  regarding  his  said  promise  and 
undertaking  in  form  aforesaid  made,  but  contriving  and  fraudulently 
intending  craftily  and  subtl}'  to  deceive  and  defraud  them  the  said 
Richard  and  Benjamin  of  the  said  £39,  has  not  3'et  paid  the  said  £39 
or  any  penny  thereof,  to  the  said  Richard  and  Benjamin,  or  anv  ways 
contented  them  for  the  same,  (although  so  to  do  the  said  John  after- 
wards, to  wit,  on  the  last  da}'  of  Novembei*,  in  the  17th  year  of  the 
reign  of  our  lord  Charles  the  Second,  now  king  of  England,  etc.,  at 
the  city  of  Durham,  in  the  said  county,  was  often  requested  by  the  said 
Richard  and  Benjamin),  but  to  pay  the  same  to  them,  or  in  any  wa3's  to 
content  them  for  the  same,  has  altogether  refused,  and  still  refuses,  to 
the  damage  of  the  said  Richard  and  Benjamin  of  £40,  etc. ;  and  there- 
fore they  bring  suit,  etc."  From  Peacock  v.  Bell  and  Kendal,  1  Saun- 
ders' Reports,  70. 

Both  declarations  contain  the  following  averments : 

(1)  A  statement  of  the  plaintiff's  right. 

(2)  A  statement  of  the  wrong,  or  breach  on  the  part 

of  the  defendant. 

But  in  that  under  Massachusetts  Practice,  the  plaintiff's 
right  is  averred  by  merely  setting  forth  the  facts  from 
w^hich  defendant's  duty  to  pay  arose.  There  is  nothing 
said  about  a  promise;  but  just  as,  in  special  assumpit,  the 
foundation  of  the  action  is  an  express  promise,  so,  in 
general  assumpsit,  the  basis  of  the  action  is  an  implied 
promise.  Thus,  if  we  examine  the  common-law  declara- 
tions in  general  assumpsit,  we  find,  under  the  statement 
of  the  plaintiff's  right,  not  only  a  statement  of  such  facts 
as  will  show  the  existence  of  a  debt  due  from  the  defendant 
to  the  plaintiff,  but  also  a  statement  of  the  (fictitious)  prom- 
ise on  the  part  of  the  defendant. 

Note  also  the  allegation  of  deceit  in  the  common-law 
declaration.-^ 

1  For  further  information  as  to  the  general  requisites  of  declarations  iu  assumpsit, 
see  supra,  233. 


DECLARATIONS.  283 

Special  Assumpsit. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  of  Massachusetts : 

For  breach  of  promise  of  marriage.  "  And  the  plaintiff  saj-s  that 
she  and  the  defendant  mutually  promised  to  marr}-  each  other.  And 
she  has  always  been  ready  to  marry  the  defendant,  but  the  defendant 
refuses  to  perform  his  promise."  Public  Statutes,  Massachusetts,  c. 
167,  p.  977,  form  7. 

The  following  is  a  valid  declaration  under  the  common 
law : 

"For  that  on,  etc.,  at,  etc.,  in  consideration  that  the  plaintiffs  at  the 
instance  and  request  of  the  said  D.  (defendant),  had  then  and  there 
bought  of  the  said  D.  a  certain  large  quantity,  to  wit,  one  hundred 
quarters  of  malt,  at  and  for  a  certain  price  tlien  and  there  agreed  upon 
between  them,  he,  the  said  D.,  faithfully  promised  the  plaintiffs  well 
and  truly  to  deliver  to  them  the  said  one  hundred  quarters  of  malt, 
whenever  he,  the  said  D.,  should  be  thereto  requested;  and  the  plain- 
tiffs in  fact  sa}-,  that  although  the  plaintiffs  afterwards,  viz.  on,  etc., 
i-equested  the  said  D.  to  deliver  them,  the  said  one  hundred  quarters  of 
malt,  and  were  then  and  there  ready  and  willing  to  pay  the  said  D.  for 
the  same,  according  to  the  terms  of  the  said  sale,  and  were  then  and 
there  ready  and  offered  to  accept  and  receive  the  said  one  hundred 
quarters  of  malt,  of  and  from  said  D. ;  yet  the  said  D.  did  not,  when 
requested,  as  aforesaid,  or,  at  any  other  time  before  or  since,  deliver 
to  the  plaintiffs  the  said  one  hundred  quarters  of  malt,  or  any  part 
tiiereof,  but  wholly  refused,  and  still  refuses  so  to  do."  Oliver, 
Precedents,  32. 

(This  declaration  was  held  good  on  a  motion  in  arrest  of  judgment; 
though  objected  that  the  plaintiff's  should  have  averred  an  actual  ten- 
der, and  not  a  mere  readiness  and  willingness  to  pay  for  the  malt.) 

Both  declarations  contain  the  following  averments : 

1.  That   defendant   made  a  contract   with    plaintiff; 

the  latter  declaration  setting  forth,  by  way  of 
inducement,  the  circumstances  under  which  the 
contract  was  made. 

2.  A  recital  in  words   or  substance  of  the  terras  of 

the  contract. 

3.  Consideration.     (In  contracts  which   import  con- 

sideration, i.  e.  bills,  notes,  and  checks,  the 
allegation  of  consideration  is  omitted.) 


284  CASES    ON    COMMON-LAW    PLEADING. 

4.  Performance  of  everything  required  of  plaintiff  by 

the  contract,  including  those  things  constitut- 
ing the  consideration  of  defendant's  promise  as 
well  as  conditions  precedent. 

5.  Breach. 

6.  Damages  to  be  laid  in   a  general  sum  arising  as 

the  legal  consequence  of  such  breach. 

SEXTON   V.  MILES. 

In  the  Common  Pleas.     1689. 

Reported  1  Salkeld,  22. 

In  assumpsit,  the  plaintiff  declared,  that  in  consideration,  etc., 
the  plaintiff  would  dehver  unto  the  defendant,  etc.,  the  defendant 
promised  to  pay,  etc.,  and  in  facto  dicit,  that  he  did  deliver,  but  does 
not  allege  a  place  where ;  the  defendant  demurred  for  want  of  a 
venue,  and  the  declaration  was  held  ill,  for  a  consideration  execu- 
tory is  traversable. 

STARKEY   V.   CHEESEMAN. 

In  the  King's  Bench.     1699. 

Reported  1   Salkeld,  128. 

Plaintiff  declared  on  a  bill  of  exchange  against  the  drawer,  show- 
ing that  the  party  on  whom  it  was  drawn  refused  to  pay  it,  per  quod 
onerahilis,  devenit,  etc.,  but  laid  no  express  promise.  He  also  laid 
an  indebitatus  assumpsit  and  a  quantum  meruit.  There  was  judg- 
ment by  default,  and  a  writ  of  inquiry  ;  and  now  Carthew  moved  in 
arrest  of  judgment,  that  lie  has  set  forth  the  custom,  but  has  not 
declared  on  an  express  promise;  and  he  argued  that  it  is  not 
enough  to  set  forth  a  contract  for  goods,  ra^^one  cvjus  the  defendant 
became  indebted,  etc.,  nor  a  submission  to  an  award,  ratione,  etc. 
And  that  without  allowing  an  express  promise,  it  must  be  taken  for 
a  mere  action  of  deceit  upon  the  warranty,  to  which  the  proper 
answer  \Qnon.cul.  and  then  it  cannot  be  joined  with  the  indebitatus 
assumpsit  and  quantum  meruit.  Vide  Hard.  486  ;  Hob.  180  ;  2  Keb. 
695  ;  Win.  24 ;  1  Cro.  302  ;  1  Ro.  302  ;  2  Cro.  306  ;  2  Ro.  366  ;  1 
Keb.  878 ;  1  Sid.  160.  Northey  answered,  that  it  was  sufficient  to 
count  upon  the  custom,  because  the  custom  makes  both  the  obliga- 
tion and  the  promise.  And  Holt,  Cliief  Justice,  held  the  drawing  of 
the  bill  was  an  actual  promise;  and  judgment  was  given  pro  quer. 


DECLARATIONS.  285 

LAW   V.   THOMAS   SANDERS. 

In  the  Quken's  Bench.     1603. 
Reported  2  Ckoke'3  Elizabeth,  913. 

Assumpsit.  The  declaration  was  in  this  manner :  "  Robertus 
Law  queritus  de  Thorn.  Sanders  in  custodia  mareschalli,  etc.  j^^'o  ^o 
videlicet.  Cam  in  consideratione  quod  idem  le  plaintiff  should  take 
to  wife  the  daughter  of  the  said  Thomas,  super  se  assumpsit  et  eidem 
Roberto  promisit  to  pay  unto  him  £100,  etc."  The  defendant 
pleaded  non  assumpsit,  and  found  for  the  plaintiff.  And  it  was 
moved  in  arrest  of  judgment,  that  the  declaration  was  not  good ; 
because  it  was  not  alleged  that  the  defendant  assumed.  But  it  was 
thereto  answered  at  the  bar,  that  it  is  necessarily  to  be  intended  that 
the  defendant  assumed,  because  it  is  queritur  versus,  etc.,  and  he  is 
there  named  ;  and  in  consideration  that  the  plaintiff  would  marry 
his  daughter,  super  se  assumpsit,  it  is  of  necessity  to  be  intended, 
that  the  defendant  did  assume ;  and  now  he  having  pleaded,  the 
jury  found  that  he  did  assume,  etc. 

But  all  the  court  held  it  to  be  ill ;  for  a  declaration  ought  to  con- 
tain the  substance,  otherwise  it  is  not  good:  and  no  matter  of  sub- 
stance shall  be  supplied  by  intendment,  nor  shall  the  verdict  help 
it.    Wherefore  it  was  adjudged  quod  quereus  nihil  capiat  j^er  hillam. 

Presented  Tidd's  Practice,  Vol.  I.  page  378. 

"  In  actions  upon  contracts,  the  declaration  must  in  all  cases  state 
the  contract  upon  which  the  action  is  founded  and  the  breach  of 
it.  And  this  alone,  without  more,  is  in  some  cases  sufficient ;  as  in 
an  action  of  debt  on  bond,  by  the  obligee  against  the  obligor.  Con- 
tracts are  either  in  writing  or  by  parol ;  if  in  writing  they  are  either 
by  deed  under  seal,  or  by  agreement  without  seal.  And  they  are 
either  e.xpress  or  implied  ;  the  former  are  created  by  the  words, 
the  latter  by  the  obvious  meaning  and  intention  of  the  parties. 
Thus  a  covenant  is  implied,  from  the  habeiidum  in  a  lease,  for  quiet 
enjoyment;  and  from  the  reddendum,  for  payment  of  the  rent.  So 
on  the  indorsement  of  a  note  or  bill,  it  is  implied,  that  if  the  drawer 
or  acceptor  do  not  pay  it,  the  indorser  will,  on  having  due  notice  of 
its  nonpayment.  And  in  general,  it  may  be  remarked,  that  prom- 
ises are  implied,  to  pay  money  on  legal  liabilities.  With  regard  to 
their  operation,  contracts  are  present  or  future  ;  under  the  former, 
may  be  ranked  warranties,  that  a  horse  is  sound,  etc. :  the  latter  are 


236  CASES    ON   COMMON-LAW   PLEADING. 

to  do  or  omit  some  act,  or  to  procure  it  to  be  done  or  omitted  by 
another.  Contracts  must  be  stated  in  the  declaration  as  they  were 
really  made,  either  in  terms,  or  according  to  their  legal  effect ;  and 
if  there  be  a  variance,  it  will  be  fatal. 

"  Where  the  contract  is  by  deed,  it  is  not  necessary  to  set  forth  the 
consideration  upon  which  it  is  founded ;  as  the  law  in  that  case 
implies  a  consideration,  where  none  is  stated.  And  a  consideration 
is  also  implied,  upon  bills  of  exchange,  and  promissory  notes.  But 
in  all  other  cases,  the  consideration,  not  being  implied,  must  be 
stated  in  the  declaration.  Considerations  are  commonly  said  to  be 
executed  or  executory;  or  in  other  words,  the  contract  is  founded 
upon  something  already  done  or  to  be  done.  But  there  is  a  third 
species  of  considerations,  partaking  of  the  nature  of  both  the  others, 
as  upon  mutual  promises,  where  the  plaintiff's  promise  is  executed, 
but  the  thing  which  he  has  engaged  to  perform  is  executory.  In 
the  case  of  a  consideration  executed,  the  defendant  cannot  traverse 
the  consideration  by  itself,  because  it  is  incorporated  and  coupled 
with  the  promise,  and  if  it  were  not  then  in  fact  executed,  it  is 
nudum  pactum.  But  if  it  be  executory,  the  plaintiff  cannot  bring 
his  action  till  the  consideration  be  performed ;  and  if  in  truth  the 
promise  were  made,  and  the  consideration  not  performed,  the  de- 
fendant must  traverse  the  performance,  and  not  the  promise,  be- 
cause they  are  distinct. 

"  It  is  also  commonly  said,  that  to  make  a  good  consideration  there 
must  be  either  an  immediate  benefit  to  the  party  promising,  or  a 
loss  to  the  person  to  whom  the  promise  was  made.  But  this  rule 
is  too  narrow.  For  wherever  a  man  is  under  a  moral  obligation, 
which  no  court  of  law  or  equity  can  enforce,  and  promises,  the  hon- 
esty and  rectitude  of  the  thing  is  a  consideration  ;  as  if  a  man  prom- 
ise to  pay  a  just  debt,  the  recovery  of  which  is  barred  by  the  statute 
of  limitations ;  or  if  a  man,  after  he  comes  of  age,  promise  to  pay  a 
meritorious  debt  contracted  during  his  minority,  but  not  for  neces- 
saries ;  or  if  a  bankrupt  in  affluent  circumstances,  after  his  certifi- 
cate, promise  to  pay  the  whole  of  his  debts ;  or  if  a  man  promise  to 
perform  a  secret  trust,  or  a  trust  void  for  want  of  writing  by  the 
Statute  of  Frauds.  In  these  and  many  other  instances,  though  the 
promise  gives  a  compulsory  remedy,  where  there  was  none  before, 
either  in  law  or  equity,  yet  as  the  promise  is  only  to  do  what  an 
honest  man  ought  to  do,  the  ties  of  conscience  upon  an  upright 
mind  are  a  sufficient  consideration. 

"  Where  the  promise  and  consideration  explain  themselves,  with- 
out reference  to  any  collateral  matter,  they  are  stated  in  the  decla- 
ration without  any  inducement.    But  where  that  is  not  the  case, 


DECLARATIONS.  287 

the  declaration  begins  by  stating  the  circumstances  under  whicli 
the  contract  was  made,  or  to  which  the  consideration  refers  ;  as  in 
an  action  of  assumpsit  to  pay  money,  in  consideration  of  forbear- 
ance, or  of  staying  proceedings,  the  declaration  begins  by  stating 
the  debt  forborne,  or  the  proceedings  that  were  stayed.  The  in- 
ducement is  in  nature  of  a  preamble,  and  leads  on  to  the  principal 
matter  of  the  declaration ;  and  as  its  office  is  explanatory,  it  does 
not  require  exact  certainty. 

"  Where  the  consideration  is  executed,  and  the  promise  to  pay  a 
sum  certain,  or  to  do  or  omit  some  specific  act,  the  declaration  pro- 
ceeds at  once  from  the  contract  to  the  breach,  without  any  inter- 
mediate averments ;  as  in  the  case  of  an  irtdehitatus  assumpsit,  to 
pay  a  precedent  debt,  etc.  But  where  the  consideration  is  execu- 
tory, or  the  performance  of  the  defendant's  covenant  or  agreement 
is  made  to  depend  on  the  performance  of  a  condition  precedent,  on 
the  part  of  the  plaintiff,  the  declaration  ought  to  aver  that  the  con- 
sideration has  been  executed,  or  the  condition  performed ;  for  it  is 
a  rule,  that  in  all  cases  where  the  estate  or  interest  commences  on 
a  condition  precedent,  be  the  condition  or  act  in  the  affirmative  or 
negative,  and  to  be  performed  by  the  plaintiff,  the  defendant,  or  any 
otlier,  the  plaintiff  ought,  in  his  count,  to  aver  performance  ;  as  if  a 
man  grant  an  annuity  to  another,  when  he  is  promoted  to  such  a 
benefice,  etc.,  tlie  plaintiff  in  annuity  ought  to  aver,  that  he  is  pro- 
moted, etc.  But  where  an  estate  or  interest  passes  or  vests  im- 
mediately, and  is  to  be  defeated  by  a  condition  subsequent,  or 
matter  ex  post  facto,  be  it  in  the  affirmative  or  negative,  or  to  be  per- 
formed by  tlie  plaintiff  or  defendant,  or  by  any  other,  performance 
of  that  matter  need  not  be  averred  ;  as  if  a  grant  be  of  an  annuity 
to  A.  till  he  be  advanced  to  a  benefice,  A.  in  annuity  need  not  say 
tliat  he  is  not  yet  advanced. 

"  Covenants  or  agreements  are  of  three  kinds  :  first,  such  as  are 
called  mutual  and  independent,  where  either  party  may  recover  dam- 
ages from  the  other,  for  the  injury  he  may  have  received,  by  a 
breach  of  the  covenants  in  his  favor,  and  where  it  is  no  excuse  for 
the  defendant  to  allege  a  breach  of  the  covenants  on  the  part  of  the 
plaintiff ;  secondly,  there  are  covenants  which  are  conditions,  and 
dependent,  in  which  the  performance  of  one  depends  on  the  prior 
performance  of  another ;  and  therefore,  till  this  prior  condition  be 
performed,  the  other  party  is  not  liable  to  an  action  on  his  cov- 
enant ;  thirdly,  there  is  also  a  sort  of  covenants,  wliich  are  mutual 
conditions  to  be  performed  at  the  same  time  ;  and  in  these,  if  one 
party  was  ready,  and  offered  to  perform  his  part,  and  the  other 
neglected  or  refused  to  perform  his,  he  who  was  ready  and  offered, 


288  CASES   ON   COMMON-LAW    PLEADING. 

has  fulfilled  his  engagement,  and  may  maintain  an  action  for  the 
default  of  the  other,  though  it  be  not  certain  that  either  is  obliged 
to  do  the  first  act. 

"The  dependence  or  independence  of  covenants  is  to  be  collected 
from  the  evident  sense  and  meaning  of  the  parties ;  and  however 
transposed  they  may  be  in  the  deed,  their  precedency  must  depend 
on  the  order  of  time,  in  which  the  intent  of  the  transaction  requires 
their  performance.  The  words  by  which  conditions  precedent  are 
commonly  created  are /or,  in  consideration  of,  ita  quod,  proinde,  etc. 
In  general,  if  the  agreement  be  that  one  party  shall  do  an  act,  and 
that  for  the  doing  thereof  the  other  shall  pay  a  sum  of  money,  the 
doing  of  the  act  is  a  condition  precedent  to  the  payment,  and  the 
party  who  is  to  pay  shall  not  be  compelled  to  part  with  his  money 
till  the  thing  be  performed.  And  however  improbable  the  thing 
may  be,  it  must  be  complied  with,  or  the  right  which  was  to  attach 
on  its  being  performed  does  not  vest.  As  if  the  condition  be,  that 
A.  shall  enfeoff'  B.  and  A.,  do  all  in  his  power  to  perform  the  con- 
dition, and  B.  will  not  receive  livery  of  seisin,  it  was  never  doubted, 
but  that  the  right  which  was  to  depend  on  the  performance  of  the 
condition  did  not  arise.  If  a  person  undertake  for  the  act  of  a 
stranger,  the  cases  are  uniform  to  show  that  such  act  must  be  per- 
formed. And  where  there  are  mutual  promises,  yet  if  one  thing  be 
the  consideration  of  the  other,  there  a  performance  is  in  general 
necessary. 

"  If  a  day  be  appointed  for  payment  of  money,  and  the  day  is  to 
happen  before  the  thing  can  be  performed,  an  action  may  be  brought 
for  the  money  before  the  thing  is  done  ;  for  it  appears  that  the  party 
relied  upon  his  remedy,  and  intended  not  to  make  the  performance 
a  condition  precedent.  But  where  a  certain  day  of  payment,  is 
appointed,  and  that  day  is  to  happen  subsequent  to  the  performance 
of  the  thing  to  be  done  by  the  contract,  in  such  case  the  per- 
formance is  a  condition  precedent,  and  must  be  averred  in  an  action 
for  the  money.  So  if  two  men  agree,  one  that  the  other  shall  have 
his  horse,  and  the  other  that  he  will  pay  £10  for  him,  no  action 
lies  for  the  money,  till  the  horse  be  delivered.  Another  distinction 
to  be  attended  to  is,  that  where  mutual  covenants  go  to  the  whole 
of  the  consideration  on  both  sides,  they  are  mutual  conditions,  the 
one  precedent  to  the  other ;  but  where  they  go  only  to  a  part,  and 
a  breach  may  be  paid  for  in  damages,  there  the  defendant  has  a 
remedy  on  his  covenant,  and  shall  not  plead  it  as  a  condition  pre- 
cedent. And  it  is  said,  that  where  the  participle  doing,  perform- 
ing, etc.,  is  prefixed  to  a  covenant  by  another  person,  it  is  a  mutual 
covenant,  and  not  a  condition  precedent." 


DECLARATIONS.  289 

"An  averment  may  be  by  any  words,  which  show  that  the  matter 
is  as  stated  ;  as  that  the  plaintiff  avers,  or  in  fact,  saith,  or  althouofh, 
or  because,  or  with  this,  that,  etc.  And  where  there  is  a  condition 
precedent,  it  is  necessary  to  state  in  the  dechiration  that  it  has  been 
performed,  or  a  lawful  excuse  for  its  nonperformance.  But  there 
are  some  cases  in  the  books  respecting  conditions  precedent,  where 
the  thing  agreed  to  be  done  having  been  in  effect  performed,  though 
not  in  the  exact  manner,  nor  with  all  the  circumstances  mentioned, 
it  was  deemed  a  substantial  performance  ;  as  where  the  condition 
was  to  enfeoff,  a  conveyance  by  lease  and  release  has  been  deemed 
sutticient.  So  if  the  condition  be  for  one  to  deliver  the  will  of  the 
testator,  and  he  deliver  letters  testamentary.  And  wherever  a,  man, 
by  doing  a  previous  act,  would  acquire  a  right  to  any  debt  or  duty,  by 
a  tender  to  do  the  previous  act,  if  the  other  party  refuse  to  permit 
him  to  do  it,  he  acquires  the  right  as  completely  as  if  it  had  been 
actually  done  ;  ai.d  if  the  tender  be  defective,  owing  to  the  conduct 
of  the  other  party,  such  incomplete  tender  will  be  sutticient ;  be- 
cause it  is  a  general  principle,  that  he  who  prevents  a  thing  from 
being  done,  shall  not  avail  himself  of  the  nonperformance  which 
he  has  occasioned.  The  performance  of  a  condition  precedent  is 
also  excused  by  the  absence  of  the  plaintiff,  in  those  cases  where 
his  presence  is  necessary  for  the  performance  of  the  condition ;  by 
his  obstructing  or  preventing  the  performance ;  or  by  his  neglecting 
to  do  the  first  act,  if  it  be  incumbent  on  him  to  perform  it.  It  is 
also  excused  in  some  cases,  by  his  not  giving  notice  to  the  defend- 
ant. Where  the  conditions  are  mutual,  and  to  be  performed  at  the 
same  time,  the  plaintiff  must  aver  that  he  was  ready  and  offered  to 
perform  his  part,  but  the  defendant  refused  to  XJerform  his.  And 
where  the  sum  to  be  paid  is  not  ascertained  by  the  contract,  the 
plaintiff  must  aver  the  facts  necessary  to  ascertain  it ;  as  upon  a 
(ftantum  meruit  or  valebant,  that  the  plaintiff'  deserved  to  have,  or 
that  the  goods  were  worth,  a  certain  sum,  etc. 

"  Where  the  contract  is  to  pay  a  collateral  sum  upon  request,  there 
the  request  being  parcel  of  the  contract,  and  as  it  were  a  condition 
precedent,  ought  to  be  specially  alleged,  with  the  time  and  place  of 
making  it ;  but  where  the  contract  is  founded  upon  a  precedent  debt 
or  duty,  as  in  the  case  of  a  bond,  or  for  money  lent,  etc.,  or  is  for 
the  payment  of  a  collateral  sum  on  a  day  certain,  or  otherwise  than 
upon  request,  or  the  debt  or  duty  arises  immediately  upon  the  per- 
formance of  the  consideration,  there  it  is  not  necessary  to  allege  a 
special  request,  but  licet  smpius  requisitus  is  sufficient ;  which  is  only 
a  form  of  pleading,  and,  if  it  be  omitted,  does  not  vitiate  the  decla- 
ration. 

19 


290 


CASES   OX    COMMON-LAW   PLEADING. 


"Where  the  matter  alleged  lies  more  properly  in  the  knowledge 
of  the  plaintiff  than  of  the  defendant,  there  the  declaration  ought 
to  show  that  notice  was  given  to  the  defendant ;  as  where  the 
defendant  promises  to  give  the  plaintiff  so  much  for  a  commodity 
as  it  is  worth,  or  as  any  other  had  given  him  for  the  like,  or  to 
give  so  much  for  every  cloth  the  plaintiff  should  buy,  or  to  pay  the 
plaintiff  what  damages  he  had  sustained  by  a  battery,  or  to  pay 
the  plaintiffs  costs  of  suit :  and  when  notice  is  necessary,  it  ought 
to  appear  that  it  was  given  in  due  time,  and  to  a  proper  person. 
But  where  the  matter  does  not  lie  more  properly  in  the  knowledge 
of  the  plaintiff  than  of  the  defendant,  no  notice  is  requisite ;  as  in 
debt  upon  an  obligation  conditioned  to  perform  an  award,  notice  of 
the  award  need  not  be  alleged,  because  the  defendant  may  take 
notice  of  it,  as  well  as  the  plaintiff:  so  if  upon  a  treaty  of  mar- 
riage, a  promise  be  made  to  the  father  of  the  daughter,  by  the 
father  of  the  son,  to  pay  the  daughter  £100  after  the  death  of  the 
son,  if  she  survive  him,  and  the  son  die,  an  action  may  be  brought 
upon  this  promise;  and  notice  need  not  be  given  to  the  defendant 
of  the  death  of  the  son.  So  on  a  promise  to  pay  so  much  money 
at  the  full  age  of  an  infant,  notice  of  his  attaining  that  age  need 
not  be  given,  because  it  is  as  notorious  to  the  one  as  to  the  other. 
And  in  an  action  on  a  promissory  note,  by  the  indorsee  against  the 
drawer,  notice  of  the  indorsement  need  not  be  averred. 

"  The  breach,  in  a  declaration  upon  contract,  is  either  negative, 
that  the  defendant  has  not  done  something  which  he  contracted  to 
do,  or  procured  it  to  be  done  by  another,  or  that  he  has  not  done  it, 
or  procured  it  to  be  done,  in  a  careful  and  proper  manner ;  or  it  is 
affirmative,  that  he  has  done  something  which  he  contracted  not  to 
do,  or  suffered  it  to  be  done  by  another,  or  that  he  has  deceived  the 
plaintiff  on  a  warranty,  etc.  The  breach  must  be  assigned  in  the 
words  of  the  contract,  or  in  words  tantamount,  which  comprehend 
the  substance  and  effect  of  it :  and  in  assigning  the  breach  of  a 
covenant  for  quiet  enjoyment,  it  is  sufficient  to  allege,  that  at  the 
time  of  the  demise  to  the  plaintiff,  A.  B.  had  lawful  right  and  title 
to  the  premises,  and  having  such  right  and  title,  entered  and 
evicted  the  plaintiff,  without  showing  what  title  A.  B.  had,  or  that 
he  evicted  the  plaintiff  by  legal  process.  Where  the  damages  sus- 
tained by  the  plaintiff  are  naturally  connected  with  the  breach  of 
contract,  it  is  not  usual  to  state  them  specially  in  the  declaration  ; 
otherwise  they  should  be  stated,  in  order  to  prevent  a  surprise  upon 
the  defendant." 


DECLARATIONS.  291 

II.   TOETS. 
Trover. 

The  following  is  a  valid  declaration  under  the  Practice 

Act  in  Massachusetts  : 

"To  answer  A.  B.  of  Boston,  in  an  action  of  tort. 

"  And  the  [jlaintiff  sajs  the  defendant  has  converted  to  his  own  use, 
one  horse,  the  property  of  the  plaintiff."  ^  Pub.  Stat.  Mass.  c.  167, 
p.  978. 

The  following  is  a  valid  declaration  at  common  law. 
(The  body  only  of  the  declaration  is  given  and  only  so 
much  of  that  as  is  necessary  for  comparison  with  the 
above.) 

"For  that  whereas  the  plaintiff  heretofore,  to  wit,  on  the  17th  day  of 
January,  in  the  year  of  our  Lord  1845,  was  lawfull}'  possessed,  as  of 
his  own  property,  of  a  certain  balloon  of  great  value,  to  wit,  of  tlie 
value  of  £500,  and  being  so  possessed  thereof,  the  plaintiff  afterwards, 
to  wit,  on  the  day  and  \'ear  aforesaid,  casualh'  lost  the  same  out  of  his 
possession,  and  the  same  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, came  to  the  possession  of  the  defendant  by  finding;  yet  the  de- 
fendant, well  knowing  the  said  balloon  to  be  the  property  of  the  plaintiff, 
and  of  right  to  belong  and  appertain  to  him,  but  contriving  and  fraudu- 
lently intending  to  deceive  and  defraud  the  plaintiff,  hath  not  as  yet 
delivered  the  said  balloon  to  the  plaintiff  (although  often  requested  so 
todo);^  and  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  con- 
verted and  disposed  of  the  same  to  his,  the  defendant's  own  use,  to  the 
damage  of  the  plaintiff  of  £200,  and  therefore  he  brings  suit,  etc." 
Warren,  Law  Studies,  589. 

Both  declarations  contain  the  same  substantive  alle- 
gations. 

1.  An  averment  of  plaintiff's  general  or  special  property 
in  a  generally  described  chattel. 

2.  A  conversion  by  the  defendant. 

3.  Damage. 

1  No  allegation  of  damage  is  necessary.  The  nd  damnum  is  a  sufficient  allegation 
of  damage  in  all  cases  in  which  special  damages  are  not  claimed.  Pub.  Stat.  Mas.s.  c. 
167,  p.  978,  form  3. 

2  Supertlumis  ?  Per  Holt,  C.  J.,  in  Baldwin  v.  Cole,  6  Mod.  212,  supra.  "The 
very  denial  of  goods  to  him  that  lias  a  right  to  demand  them  is  an  actual  conversion, 
and  not  only  evidence  of  it,  as  has  been  holdeu."     Cf.  McKelvey,  I'leadin"-,  42. 


292 


CASES    ON    COMMON-LAW   TLEADING. 


Subtract  these  from  the  common-law  declaration, 
still  remains 

4.  An  allegation  of  losing  and  finding. 


There 


"  The  classic  count  in  trover  alleges  that  the  plaintiff  was  possessed, 
as  of  his  own  propert}',  of  a  certain  chattel ;  that  he  afterwards  casually 
lost  it ;  that  it  came  to  the  possession  of  the  defendant  by  finding  ;  that 
the  defendant  refused  to  deliver  it  to  the  plaintiff  on  request;  and  that 
he  converted  it  to  his  own  use,  to  the  plaintiff's  damage.  And  yet 
throughout  the  history  of  this  action  the  last  of  the  five  allegations  has 
been  the  only  one  that  the  plaintiff  must  prove.  The  averments  of  loss 
and  finding  are  notorious  fictions,  and  that  of  demand  and  refusal  is 
surplusage,  being  covei'ed  bj'  the  averment  of  conversion.  Under  the 
first  allegation  the  plaintiff  need  not  prove  that  the  chattel  was  his  own 
property,  or  that  he  was  in  actual  possession  of  it.  It  is  enough  to 
show  actual  possession  as  a  bailee,  finder,  or  trespasser,^  or  to  prove 
inerel}'  an  immediate  right  of  possession."  Ames,  History  of  Trover, 
11  Harv.  L.  Rev.  2. 

'•'The  action  of  trover  and  conversion  was  in  its  original  an  action 
of  trespass  upon  the  case,  for  the  recover}'  of  damages  against  such 
person  as  had  found  another's  goods  and  refused  to  deliver  them  on 
demand,  but  converted  them  to  his  own  use  ;  from  which  finding  and 
converting  it  is  called  an  action  of  trover  and  conversion.  .  .  .  Tlic 
injur}'  lies  in  the  conversion  ;  for  any  man  may  take  the  goods  of 
another  into  possession  if  he  finds  them ;  but  no  finder  is  allowed  to 
acquire  a  property  therein,  unless  the  owner  be  forever  unknown  ;  and 
therefore  he  must  not  convert  them  to  his  own  use,  which  the  law  pre- 
sumes him  to  do  if  he  refuse  them  to  the  owner ;  for  which  reason  such 
refusal  also  is,  prima  facie,  sufficient  evidence  of  a  conversion.  The  fact 
of  the  finding  or  trover  is  therefore  now  totally  immaterial ;  for  the  plain- 
tiff needs  only  to  suggest  (as  words  of  form)  that  he  lost  such  goods, 
and  that  the  defendant  found  them  ;  and  if  he  proves  that  the  goods 
are  his  property,  and  that  the  defendant  had  them  in  bis  i)ossession,  it 
is  sufficient.  But  a  conversion  must  be  fully  proved  ;  and  then  in  this 
action  the  plaintiff  shall  recover  damages,  equal  to  ths  value  of  the 
thing  converted,  but  not  the  thing  itself;  which  nothing  will  recover 
but  an  action  of  detinue  or  replevin."  3  Blackstone's  Commentaries, 
153. 

Detinue. 

Detinue  never  existed  in  Massachusetts.  Hence  we  can 
present  no  form  of  declaration  sanctioned  by  the  legislature 
of  that  State. 

The  following  is  a  valid  declaration  at  common  law : 

^  Note  that  the  learued  writer  does  not  venture  so  far  as  to  use  the  word  "  thief." —  Ed. 


DECLARATIONS.  293 

"■  In  a  plea  of  detinue  for  that  whereas  the  plaintiff  heretofore,  to  wit, 
on  tlie  fiist  day  of  July,  1856,  at  Furmington,  aforesaid,  was  possessed 
of  a  certain  house  and  a  certain  barn,  both  situated  on  tlie  lantl  of  tlie 
said  Daniel  Dame,  being  the  house  built  by  the  plaintiff  in  the  year 
1842,  said  house  being  about  thirty-six  feet  long,  and  about  twenty-six 
feet  wide,  and  one  story  and  one  quarter  high,  and  of  the  value  of 
$300  ;  and  said  barn  being  about  twenty-four  feet  long  and  al)ont 
twenty  feet  wide,  and  of  the  value  of  $200,  situated  between  the  house 
of  Eleazer  Rand  and  the  house  now  owned  by  Benjamin  Chesley,  on 
the  left  hand  side  of  the  road  leading  from  the  Bay  road,  so  called,  to 
tlie  Ten  Rod  road,  so  called,  as  one  goes  toward  the  Ten  Rod  road,  as 
of  his  own  house  and  barn,  and  being  so  possessed,  the  said  plaintiff, 
afterward,  to  wit,  on  the  third  day  of  July,  1856,  casually  lost  the 
same  out  of  his  possession,  which  thereafterward,  to  wit,  on  the  same 
day,  came  into  the  hands  and  possession  of  the  said  Daniel  Dame,  by 
finding;  and  the  plaintiff  further  saith,  that  althougii  the  said  Daniel 
Dame  well  knew  that  the  said  liouse  and  l)arn  were  the  proper  house 
and  barn  of  the  plaintiff,  and  although  requested  by  the  said  plaintiff, 
to  wit,  at  said  Farmington,  on  the  nineteenth  day  of  May,  1860,  to 
deliver  tiie  same  to  the  plaintiff,  yet  the  said  Daniel  Dame  hath  not  de- 
livered up  the  said  house  and  barn  to  tlie  plaintiff  but  wholly  refuses  so 
to  do,  and  still  unlawfully  detains  the  same."  From  Dame  v  Dame 
43  N.  H.  37. 

The  following  are  the  substantive  averments  in  detinue : 

1.  A  description  of  the  chattels  sufficient  for  their  identi- 
fication. 

2.  An  allegation  of  value  of  the  chattels. 

3.  Breach  of  the  duty  to  redeliver  the  found  goods,  or 
breach  of  the  bailment,  —  that  the  defendant  refused  to 
redeliver  the  chattels  to  plaintiff  on  demand. 

4.  Damages. 


BOGGS   V.  NEWTON 

Court  of  Api'eals,  Kentucky.     1810. 

Reported  2  Bihh,  221. 

This  was  a  writ  of  error  to  a  jutlgtuent  in  an  action  of  detinue 
for  a  horse. 

The  declaration  contained  no  description  of  the  horse  whatever. 
He  is  designated  neither  by  name,  color,  size,  gait,  figure,  nor  any 
other  characteristic  mark  either  natural  or  artificial,  by  which  he 
can  be  distinguished  from  other  animals  of  the  same 'species.   Such 


294  CASES    ON   COMMON-LAW    PLEADING. 

a  general  mode  of  declaring  may  be  sufficient  in  trespass  or  trover, 
where  damages  only  are  to  be  recovered ;  but  in  this  action,  where 
the  thing  itself  is  to  be  specifically  recovered,  it  is  fatally  defective. 
Hence  it  is  that  detinue  will  not  lie  for  money,  corn,  or  the  like, 
unk^ss  it  be  in  a  bag  or  a  sack  by  which  it  may  be  distinguished. 
Co.  Litt.  286  h;  3  Black.  Com.  152  ;  25  Arms.  74,  note  1  h. 

Judgment  reversed,  and  cause  remanded,  with  leave  to  amend, 
etc. 

But  these  averments  do  not  exhaust  the  declaration. 
How  much  of  what  remains  is  surplusage ;  how  much  is 
necessary  fiction  ?  The  answer  may  be  found  in  the 
followino;:  — 

Evolution  of  the  Declaration  in  Detinue. 
(a)    The  Fiction  of  Bailment. 

Anciently  in  detinue  the  count  must  allege  a  bailment. 
This  averment  was  substantive.  Thus  (hypothetical),  A.  v. 
X.  Detinue  sur  hailment.  A.  bails  a  chattel  to  M.,  from 
whom  it  is  wrongfully  taken  by  X.  (or  by  whom  it  is 
wrongfully  sold  or  bailed  to  X.).  "  This  action  will  not 
lie  against  the  third  hand."  A.  has  no  action  against  X. ; 
''  his  only  action  is  against  M."  ^  Anciently,  too,  since  the 
allegation  of  bailment  was  a  substantive  averment,  a  trav- 
erse of  the  bailment  was  an  answer  to  the  action.  Per 
Louther,  J.,  "  The  cause  of  your  action  [of  detinue]  is  the 
bailment,  and  at  the  time  of  the  bailment  she  could  not 
bind  herself.  Judgment  if  now  she  ought  to  answer  of  a 
thing  for  which  she  could  not  bind  herself." " 

Later,  after  the  scope  of  the  action  became  enlarged,  the 
allegation  of  bailment  degenerated  into  a  mere  fiction,  and 
the  traverse  of  the  bailment  became  an  immaterial  trav- 
erse. In  Gledstane  v.  Hewitt,^  Bayley,  B.,  said,  "  Thus,  the 
authorities  seem  to  show,  that  though  a  bailment  is  stated 
in  the  declaration,  it  is  not  an  essential  part  of  the  decla- 
ration, and  that  the  plaintiff  may  or  may  not,  at  his  elec- 

,        1  2  Pollock  and  Maitland,  174.  2  y.  B.  20  and  21  Edw.  I.  189. 

3  I  Cr.  aud  J.  565  (1831), 


DECLARATIONS.  295 

tion,  in  his  replication,  make  the  terms  of  the  delivery 
material ;  but  it  is  for  him  only  to  do  so ;  and  he  is  not 
tied  down  to  the  species  of  bailment  stated  in  his  decla- 
ration :  and  if  he  can  make  out  that  he  was  entitled  to 
the  possession  and  redelivery  of  the  goods,  and  that  the 
defendant  wrongfully  withheld  them,  he  will  be  entitled  to 
recover." 

(b)    The  Passinq  of  the  Fiction  of  Bailment.      Growth  of  the 
Fiction  of  Finding  in  Detinue. 

The  more  modern  precedents  in  detinue,  however,  omit 
tlie  allegation  of  bailment,  and  substitute  an  averment  of 
finding.  Whence  came  this  averment  ?  According  to  a  re- 
cent  eminent  writer,^  the  fiction  of  finding  instead  of  bail- 
ment in  detinue  was  reached  by  gradual  steps. 

First,  the  action  was  allowed  to  be  maintained  against 
the  executor  of  the  bailee  when  the  property  came  to  his 
hand.  In  an  interesting  case  decided  in  the  year  1323,- 
the  plaintiff  alleged  a  bailment  of  a  deed  to  A. ;  that  the 
deed  came  to  the  hands  of  the  defendant  after  A.'s  death ; 
and  that  the  defendant  refused  to  deliver  on  request.  The 
plaintiff  failed  because  he  did  not  make  the  defendant  privy 
to  A.  as  heir  or  executor. 

Second,  the  action  was  allowed  against  a  person  acquir- 
ing possession  from  a  bailee,  or  subsequent  to  a  bailment. 
The  law  had  changed,  and  it  was  good  form  to  count  of 
a  bailment  to  A.  and  a  general  de  venerunt  ad  manus  of  the 
defendant  after  A.'s  death.  Per  Paston,  J.,  "  The  count  is 
good  notwithstanding  he  does  not  show  how  the  deed  came 
to  defendant,  since  he  haa  shown  a  bailment  to  B.  (the 
original  bailee)  at  one  time."  Martin,  J.  "  He  ought  to 
show  how  it  came  to  defendant."  Paston,  J.  "No,  for  it 
may  be  defendant  found  the  deed,  and  if  what  you  say  is 
law,  twenty  records  in  this  court  will  be  reversed."  ^ 

Third,  in  the  year  1371,  detinue  was  said  to  lie  against 
the  finder  of  property  in  the  absence  of  any  bailment.    The 

1  J.  B.  Ames,  History  of  Trover,  11  Ilarv.  L.  Rev.  374  et  neq. 
'  Y.  B.  16  Edw.  II.  490.  3  y.  B.  9  Hen.  VI.  f.  58,  pi.  4. 


296  CASES   ON    COMMON-LAW   PLEADING. 

plaintiff  brought  detinue  for  an  ass,  alleging  that  it  had 
strayed  from  him  to  the  seigniory  of  the  defendant,  and 
that  he  one  month  afterwards  offered  the  defendant  reason- 
able satisfaction  (for  the  keep).  Issue  was  joined  upon  the 
reasonableness  of  the  tender.^ 


(c)    The  Evolution  froin  Substance  to  Form. 
Note  in  Y.  B.  22  Edward  L  467.     Anno  1294. 

Gerard  de  Lisle  and  Alice  his  wife  v.  Thomas  Malekake  and 
Beatrix  his  wife.^     Writ  of  Admeasurement  of  Dower. 

"Note  that  where  a  thing  belonging  to  a  man  is  lost,  he  may 
count  that  he  (the  finder)  tortiously  detains  it,  etc.,  and  tortiously 
for  this  that  whereas  he  lost  the  said  thing  on  such  a  day,  etc.,  he 
(the  loser)  on  such  a  day,  etc.,  and  found  it  in  the  house  of  such 
an  one  and  told  him,  etc.,  and  prayed  him  to  restore  the  thing,  but 
that  he  would  not  restore  it,  etc.,  to  his  damage,  etc. ;  and  if  he  will, 
etc.  In  this  case  the  demandant  must  prove  by  his  law  (his  own 
hand  the  twelfth)  that  he  lost  the  thing." 

"  In  detinue  it  is  no  plea  that  ne  haila  pas  ;  for  the  bailment  is 
not  traversable  ;^  for  he  shall  answer  to  the  detinue.  Br.  Detinue 
de  Biens,  pi.  50,  cites  3  Hen.  IV."  Viner's  Abridgment,  Deti- 
nue, 33. 

"Detinue  upon  trover  [i.e.  a  finding],  the  defendant  justified  for 
distress  of  the  same  goods  for  rent  arrear,  judgment  si  actio,  and 
did  not  answer  to  the  trover,  and  good  per  cur.,  for  it  is  not  travers- 
able ;  but  in  the  case  of  27  Hen.  VIII.  33  Shelley  said  in  some  case 
trover  is  traversable,  which  Fitzherbert  expressly  denied.  Br. 
Detinue  de  Biens,  pi.  2,  cites  27  Hen.  VIII.  22."  Viner's  Abridg- 
ment, Detinue,  37. 

"  In  detinue  the  plaintiff  counted  upon  trover,  the  defendant  jus- 
tified for  pledges  upon  money  lent,  and  per  Brian  this  is  no  plea 
without  traversing  the  trover ;  for  otherwise  he  does  not  encoun- 
ter the  plaintiff.  lUcl.  [21  Edw.  IV.  55]."  Viner's  Abridgment, 
Detinue,  37. 

1  Y.  B.  2  Edw.  in.  f.  2,  pi.  5.  2  Y.  B.  22  Edw.  I.  461. 

3  Mattel's  of  substance  are  traversable ;  matters  of  form  are  not.  Master  and 
Wardens  of  the  Society  of  Innholders  in  London  y.  Gledhill,  Sayer,  274,  reported  post. 


DECLARATIONS.  297 


GLEDSTANE   v.   HEWITT. 
Exchequer  of  Pleas,  Trinity  Term.     1831. 
Reported  1  Crompton  and  Jervis,  565. 
In  detinue  the  allegation  of  bailnnent  is  not  traversable. 

Detinue  on  bailment  of  a  promissory  note,  delivered  by  the  plain- 
tiff to  the  defendant,  to  be  redelivered  on  request.  Averment  of  a 
special  request.^ 

Plea,  that  before  the  exhibiting  the  bill  of  the  plaintiff,  to  wit, 
etc.,  the  plaintiff  delivered  the  said  promissory  note  to,  and  de- 
posited and  lodged  the  said  promissory  note  with,  the  defendant, 
to  be  by  him  kept  as  a  pledge  and  security  for  the  repayment  of  a 
certain  sum  of  money,  to  wit,  the  sum  of  £50,  then  lent  and  ad- 
vanced by  the  defendant  to  the  plaintiff,  upon  the  faith  and  security 
of  the  said  promissory  note,  and  which  said  sum  of  £50  had  not  at 
any  time  before  the  exhibiting  the  bill,  etc.,  been  repaid  to  the  de- 
fendant, btit  still  remained  wholly  due  and  unpaid.  By  reason 
whereof,  the  defendant  from  thence  hitherto  detained,  and  still 
detains,  etc.,  etc. 

Replication,  that  the  plaintiff,  after  the  said  depositing  and  lodg- 
ing the  said  promissory  note  with  the  defendant,  and  before  the 
exhibiting  the  bill,  etc.,  was  ready  and  willing,  and  then  and  there 
tendered  and  ottered  to  pay  to  the  defendant  the  said  sum  of  £50, 
and  then  and  there  required  the  defendant  to  redeliver  up  to  him 
the  said  promissory  note,  which  the  defendant  then  and  there 
wholly  refused  to  do ;  wherefore,  etc.,  etc. 

Special  demurrer,  showing  for  cause,  that  plaintiff  had,  in  his 
said  replication,  departed  from  the  declaration,  and  relied  upon  a 
new  ground  of  action,  and  that  the  matters  alleged  in  the  replica- 
tion did  not  support  the  declaration,  but  were  inconsistent  with  it. 

Lord  Lyndhurst,  C.  B.^  The  question  raised  by  this  demurrer 
is,  whether  the  replication  is  a  departure.  The  declaration  is  in 
detinue,  upon  a  bailment  in  the  ordinary  form,  to  be  redelivered  on 
request.  We  are  of  o])inion  that,  in  the  action  of  detinue,  the  de- 
tainer is  the  gist  of  the  action,  and  that  the  bailment  is  merely  in- 
ducement. Otherwise,  in  the  cases  where  a  bailment  different  ifrom 
the  one  in  the  declaration  is  stated  in  the  plea,  it  would  liave  been 
necessary  for  the  defendant  to  have  traversed  the  bailment  laid  in 
the  declaration. 

In  Bateraan  v.  Ellman,  it  was  determined  that  the  bailment  laid 

^  There  was  a  second  count  on  a  finding. 

2  The  judgment  of  tlie  court  in  this  case  was  not  given  until  the  day  next  after  the 
argument. 


298  CASES    ON   COMMON-LAW    PLEADING. 

in  the  declaration  was  not  material.  I  am  therefore  of  opinion 
that  there  is  no  departure,  and  that  our  judgment  must  be  for 
the  plaintiff. 

Bajley,  B.  I  am  of  the  same  opinion.  The  declaration  states 
the  delivery  to  the  defendant  of  a  certain  note,  to  be  redelivered  to 
the  plaintiff  upon  request.  Now,  the  nature  of  the  action  of  detinue 
is,  that  the  detainer  is  the  gist  of  the  action. 

The  plaintiff  must  make  out  that  he  was  entitled  to  the  delivery 
of  the  article,  and  that  the  defendant  wrongfully  detained  it ;  and 
if  he  can  do  that,  he  has  done  all  that  is  necessary  to  maintain  his 
action.  He  is  not  bound  to  show  the  circumstances  under  which 
the  article  came  into  the  defendant's  hands.  It  may  come  into  the 
defendant's  hands  by  bailment,  by  pledge,  which  is  a  species  of 
bailment,  by  finding,  or  by  other  means.  The  action  of  detinue  is 
an  action  of  wrong,  and  it  is  only  necessary  to  prove  so  much  as 
is  material ;  and  the  question  in  this  case  is,  whether  the  allega- 
tion,  that  ttie  note  was  to  be  redelivered  on  request,  is  essential  to 
eTrtttiFTEe  plaintiff  to  recover  in  this  case.  The  defendant  pleads^ 
what  in  substance  amounts  to  this,  that  the  note  was  delivered  on 
pledge ;  namely,  that  he  was  to  hold  it  until  the  plaintiff  paid  him 
£50,  which  is  a  diflerent  bailment  from  that  stated  in  the  declara- 
tion. If  the  declaration  is  to  be  considered  as  binding  the  plaintiff 
to  a  contract  to  redeliver  on  request,  the  defendant's  plea  should 
have  concluded  with  a  traverse  ;  it  should  have  stated  that  the 
note  was  delivered  by  way  of  pledge,  and  have  traversed  that  it 
was  delivered  to  be  redelivered  on  request.  That  would  have  been 
essential,  if  the  bailment  in  the  declaration  were  material ;  but  the 
authorities  show  that  such  a  traverse  is  not  the  common  course  of 
pleading;  and  the  defendant  must,  show  such  a  delivery  as  will 
give  him  a  continuing  right  to  withhold  the  article.  If  the  plain- 
tiff' means  to  insist,  that  the  article  was  not  delivered  on  the  terms 
mentioned  in  the  plea,  he  is  at  liberty,  in  his  replication,  so  to  do  ; 
but  it  is  not  for  the  defendant  to  tie  him  down  to  the  bailment 
stated  in  the  declaration  by  a  traverse.  If  the  plaintiff  does  not 
mean  to  deny  the  terms,  which  are  stated  in  the  plea,  he  may  show 
that,  even  upon  those  terms,  the  defendant  has  no  right  to  with- 
hold. Therefore,  to  a  plea  of  this  description,  the  plaintiff  has 
the  option  to  deny  the  species  of  delivery  on  which  the  defendant 
insists,  or  to  show  such  circumstances  as,  admitting  the  delivery, 
establish  that  the  defendant  is  guilty  of  a  wrongful  detention.  As 
it  seems  to  me,  that  is  clearly  to  be  deduced  from  the  case  of 
Bateman  v.  Ellman,  and  the  other  authorities  on  the  same  point. 
In  Bro.  Detinue  de  Biens,  pi.  50,  it  is  said :  "  In  detinue,  it  is  no 
plea  that  plaintiff  did  not  bail  as  laid,  for  the  bailment  is  not  trav- 
ersal)le,  and  the  defendant  shall  answer  to  the  detinue."  So,  Dyer, 
fol.  29  h,  in  detinue  for  forty  quarters  of  wheat,  the  plaintiff  'de- 
clared simply  on  a  contract  for  wheat,  etc. ;  the  defendant  pleaded, 
that  the  plaintiff  bought  of  him  eighty  quarters,  upon  condition, 


DECLARATIONS.  299 

that,  when  plaintiff  came  for  the  wheat,  he  should  pay  immedi- 
ately, or  otherwise  the  whole  to  be  void ;  and  further,  that  the 
plaintiff  had  received  thirty  quarters,  and  paid  him  for  tliem  ;  and 
at  another  day  came  and  received  ten  quarters,  and  had  not  paid 
for  them,  so  that  the  contract  became  void ;  thus,  not  traversing 
the  contract  as  stated  in  tlie  declaration,  dmpliciter,  but  going  on 
to  state  circumstances  which  would  justify  liim  in  withholding 
the  corn.  Then  the  question  was  raised,  whether  the  defendant 
ought  not  to  have  concluded  his  plea  with  a  traverse,  because  it 
was  said,  the  plaintiff'  states  an  unconditional  contract,  which  binds 
the  defendant  to  deliver,  at  all  events,  and  the  defendant  says 
it  is  a  conditional  contract.  No,  said  the  court,  that  ought  to 
come  from  the  plaintiff.  If  the  plaintiff  mean  to  insist  that  there 
was  not  such  a  contract  as  that  stated  in  the  plea,  but  such  as  his 
declaration  implies,  he  should  state  it  in  his  replication.  Now,  that 
case  shows  that  the  statement  in  the  declaration  is  not  a  statement 
which  binds  the  plaintiff,  but  that  he  is  at  liberty,  afterwards,  to 
answer  the  plea  of  the  defendant.  The  defendant  must  show  that 
the  bargain  stated  by  him  justifies  him  in  that  which  is  the  gist  of 
the  action,  the  detainer;  and  then  the  plaintiff  is  at  liberty  to 
deny  the  contract  as  the  defendant  states  it,  or  to  show  (tliat  being 
the  true  contract)  that  there  is  a  wrongful  detention  on  the  part 
of  the  defendant.  Bateman  v.  EUman  is  exactly  analogous  to  that 
case  which  I  have  mentioned  from  Dyer.  The  plaintiff  declared 
siinpliciter  on  a  bailment  to  the  defendant  of  plate,  to  be  redeliv- 
ered on  the  17th  May  :  on  a  plea  of  non  detinet,  which  put  the 
whole  of  the  declaration  in  issue  (as  it  seems  to  have  been  con- 
sidered in  Mills  V.  Graham,  1  N.  IL  140),  the  jury  found  specially, 
that  the  goods  were  bargained  and  sold  to  the  defendant  by  in- 
denture, on  a  condition,  that,  if  the  plaintiff  paid  sucli  a  sum  upon 
the  17th  May  following,  the  bargain  should  be  void,  and  they 
found  that  the  money  was  paid  on  that  day.  No  doubt  that  was 
a  fiiuling  of  a  delivery  on  different  terms  from  those  stated  in  the 
declaration ;  but  the  court  said  it  was  well  enough,  for,  the  condi- 
tion being  performed  by  payment  of  the  money,  the  plaintiff  ought 
to  have  the  goods  again,  and  then  the  detention  is  a  tort.  That 
case,  as  it  seems  to  me,  shows  that  the  plaintiff  is  not  tied  down 
to  the  terms  of  bailment  stated  in  liis  declaration.  In  the  case  of 
Kettle  V.  Bromsall,  the  plaintiff  declared  on  a  bailment  to  be  safely 
kept,  the  defendant  said,  they  were  delivered  to  me  to  be  kept  as 
my  own  proper  goods,  and  I  was  rol)bed.  That  would  have  con- 
stituted an  excuse;  the  loss  would  fall  not  on  the  defendant,  but 
on  the  owner  of  the  goods.  Now,  if  the  allegation  of  the  delivery 
to  be  safely  kept  was  a  traversable  allegation,  the  defendant  was 
bound  by  the  rules  of  pleading  to  have  traversed  it ;  but  it  is  the 
plaintiff"  who  denies  the  allegation  that  he  delivered  the  antiques 
to  be  kept  as  tlie  defendant's  own  goods ;  and  on  demurrer  the 
court  held  the  replication  good,  because  the  traverse  was  taken  on 


300  CASES   ON    COMMON-LAW   PLEADING. 

the  material  part  of  the  plea,  and  the  loss  by  the  plaintiff  would 
or  would  not  be  an  excuse,  according  to  the  terms  of  the  bailment, 
whether  to  be  safely  kept  or  to  be  kept  as  the  defendant's  own. 
Therefore,  that  case,  as  it  seems  to  me,  is  consistent  with  the 
others,  and,  instead  of  being  an  authority  for  the  defendant,  is  an 
authority  for  the  plaintiff".  The  case  of  Mills  v.  Graham  is  a  case 
in  which  it  is  impossible  to  say  that  the  court  came  to  anything 
like  a  judicial  decision  upon  the  present  point.  The  first  count 
in  that  case  was  on  a  bailment  to  redeliver  on  request;  the  second 
count  was  on  a  finding ;  it  turned  out  in  evidence  that  the  goods 
were  delivered  in  order  that  the  defendant  might  do  certain  work 
upon  them ;  and  Lord  Chief  Justice  Mansfield,  on  the  trial,  thought 
that  the  goods  had  not  been  delivered  on  the  terms  stated  in  the 
first  count,  but  that  the  plaintiff  was  entitled  to  a  verdict  upon 
the  second  count.  It  was  immaterial  whether  he  had  a  verdict  on 
the  count  upon  the  bailment  or  on  that  upon  the  trover.  On  an 
application  to  enter  a  nonsuit,  the  question  whether  the  particular 
delivery  stated  was  essential  to  be  proved,  was  much  discussed  at 
the  bar,  but  not  by  the  court.  Lord  Chief  Justice  Mansfield  by 
no  means  gives  an  opinion  that  the  plaintiff  was  bound  to  prove 
the  delivery  as  alleged.  He  says,  "  No  case  has  been  cited  to 
prove  that  where  the  detention  is  wrongful,  the  declaration  may 
not  always  be  supported  upon  an  allegation  of  finding ;  though  per- 
haps in  cases  of  special  bailments  it  may  be  fit  to  require  that  the 
plaintiffs  should  declare  specially,  yet  I  will  not  say  that  it  is  nec- 
essary even  in  these  cases."  Mr.  Justice  Chambre,  that  very  able 
pleader,  "would  not  say  whether  a  special  bailment  ought  to  be  set 
forth  or  not,  and  whether  such  bailment  might  be  traversed,  but 
was  far  from  saying  that  it  might." 

Thus,  the  authorities  seem  to  show,  that  though  a  bailment  is 
stated  in  the  declaration,  it  is  not  an  essential  part  of  the  declara- 
tion, and  that  the  plaintiff  may  or  may  not,  at  his  election,  in  his 
replication,  make  the  terms  of  the  delivery  material ;  but  it  is  for 
him  only  to  do  so ;  and  he  is  not  tied  down  to  the  species  of  bail- 
ment stated  in  his  declaration :  and  if  he  can  make  out  that  he 
was  entitled  to  the  possession  and  redelivery  of  the  goods,  and 
that  the  defendant  wrongfully  withheld  them,  he  will  be  entitled 
to  recover. 

Yaughan,  B.  I  am  of  the  same  opinion.  In  Bro.  Ab.,  title 
"  Charter  de  Terres  &  Detinue  de  Eux,"  pi.  22,  there  is  an  authority 
to  show  that  the  bailment  is  not  a  material  allegation. 

Bolland,  B.  I  concur  with  the  rest  of  the  court.  A  departure 
must  be  in  something  material.  Lee  v.  Rogers,  1  Lev.  110.  The 
gist  of  the  action  of  detinue  is  the  detainer,  and  it  does  not  appear 
to  me. that  the  allegation  which  the  defendant  says  has  been  de- 
parted from  is  material.  Judgment  for  the  plaintiff.^ 

1  Arguments  of  counsel  and  observations  of  the  court  thereou  are  here  omitted. 
—  Ed. 


DECLARATIONS.  301 

This  decision  was  followed  in  Walker  v.  Jones,  2  C.  &  M.  672;  and  it  has  since 
been  decided  tliat  the  new  rule  which  confines  the  plea  of  non  detinet  to  a  simple 
denial  of  the  detainer  malces  no  difference  in  respect  to  this  point:  the  common  l)ail- 
ment  is,  still,  not  traversable:  Whitehead  v.  Harrison,  6  Q.  B.  423,  431 ;  Clossman  r. 
White,  7  C.  B.  43.  In  the  last  case,  Wilde,  C.  J.,  says :  "  In  detinue,  the  gist  of  the 
action  is  the  detainer:  the  bailment  is  altogether  immaterial, —  in  tiie  sense  of  l)eing 
traversable:  it  is  like  the  allegation  of  the  loss,  in  a  count  in  trover.  The  plaintiff 
may  allege  any  bailment  he  pleases." 

The  declaration  in  detinue,  therefore,  contains,  in  addi- 
tion to  purely  substantive  averments,  a  fictitious  allegation 
(a)  Of  a  bailment,  or 
(6)  Of  a  losing  and  finding. 

EEPLEVIN. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  of  Massachusetts. 

And  the  plaintiff  says,  "  that  the  said  defendant,  on  the  day  of 

,  took  seventy-one  barrels  of  flour  branded  '  Harrison,'  and  foitv- 

four  barrels  of  flour  branded,  '  How,  How,'  goods  of  the  said  plaintiff, 

and  them  unlawfully  detained  ;  to  the  damage  of  the  plaintiff,  as  he 

says,  in  the  sum  of  dollars."     Oliver's  Precedents,  556. 

The  following  is  from  the  reports  of  Sir  Edmund  Saunders. 

"  Suffolk.  ^  Henry  North,  late  of  Mildenhall,  in  the  said  County,  es- 
to  wit,  )  quire,  was  summoned  to  answer  Jolin  Potter  of  a  plea, 
wherefore  he  took  a  horse,  called  a  nag,i  of  him  the  said  John,  and 
unjustly  detained  iiini  against  sureties  and  pledges,  etc.  And  where- 
upon the  said  John,  by  Edward  Coleman,  his  attorney,  complains,  that 
the  said  Henry,  on  the  18th  day  of  June,  in  the  19th  year  of  the  reign 
of  our  said  lord  Charles  the  Second,  now  king  of  p]ngland,  at  Milden- 
hall aforesaid,  in  a  certain  place  there,  called  the  Fenn,  took  the  said 
horse  of  him  the  said  John,  and  unjustly  detained  him  against  sureties 
and  pledges,  until,  etc. ;  wherefore  he  the  said  John  says  tliat  lie  is 
worse,  and  has  damage  to  the  value  of  £40  ;  and  therefore  he  brings 
suit,  etc. 

"  [Plea  of  cognizance.]  And  the  said  Henry  North  by  Francis  Wood- 
ward ills  attorney  comes  and  defends  the  wrong  and  injiuT  when,  etc., 
and  as  bailiff  of  one  Sir  Henry  North,  baronet,  well  acknowledges  the 
takmg  of  the  said  horse  in  the  said  place  in  which,  etc.  and  justly, 
etc.  because  he  says  that  the  said  place  called  the  Fenn,  in  which  the 
taking  of  the  said  horse  is  above  supposed  to  be  done,  contains,  and 
at  the  said  time  of  the  taking  of  the  said  horse  did  contain  in  itself  a 

1  This  description  seems  sufficient.    2  Williams'  Saunders,  74  b,  note. 


302  CASES   ON   COMMON-LAW   PLEADING. 

thousand  acres  of  pasture  with  the  appurtenances  in  Mildenhall  afore- 
said, whereof  a  certain  pUice  called  the  Delfe,  containing  a  hundred 
acres  of  pasture  with  the  appurtenances,  next  adjoining  to  a  certain 
other  place  there  called  the  Brincke  on  the  south  side,  is,  and  at  the 
said  time  when,  etc.  and  also  from  time  whereof  the  memory  of  man 
is  not  to  the  contrar}',  was  parcel;  which  said  hundred  acres  of  pasture 
witli  the  appurtenances  are,  and  at  the  said  time  of  tlie  taking  of  the 
said  horse,  were  the  proper  soil  and  freehold  of  the  said  Sir  Henry 
North,  baronet.  And  because  the  said  horse  of  the  said  John  Potter,  at 
the  said  time  when,  etc.  was  in  the  said  hundred  acres  of  pasture  with 
the  appurtenances,  eating  up  the  grass  there  growing,  and  doing  dam- 
age there  to  the  said  Sir  Henry  North,  baronet,  he  the  said  Henry  the 
now  defendant,  as  bailiff  of  the  said  Sir  Henry  North,  baronet,  and  by 
his  command,  at  the  said  time  when,  etc.  took  and  distrained  the  said 
horse  in  tlie  said  hundred  acres  of  pasture  with  the  appurtenances  so 
as  aforesaid  doing  damage  there,  etc.  ;  and  this  he  is  read\-  to  verify': 
wherefore  he  prays  judgment,  and  a  return  of  the  said  horse,  together 
with  his  damages,  costs,  and  charges  b}'  him  about  his  suit  in  that  be- 
half expended,  according  to  the  form  of  the  statute  in  such  case  lateh* 
made  and  provided,  to  be  adjudged  to  him,  etc."  From  the  case  of 
Potter  V.  North,  1  Saunders'  Rep.  350. 

Declaration  in  the  Detinet  and  Detinuit.^ 

"  ss. :  W.  Burton,  of  L.  Chaplain,  and  B.  W.,  were  summoned  to 
answer  unto  J.  J.  of  a  plea  wherefore  the^*  took  the  Cattel  of  him  the 
said  J.  J.  and  them  unjustly  detained  against  the  sureties  and  [)ledges, 
etc.  And  whereupon  the  said  J.  J.,  by  J.  C,  his  attorney,  complaineth 
that  the  said  W.  and  B.  the  da}',  etc.,  in  the  3'ear,  etc..  In  the  Town 

of  H.  in  a  certain  place  called ,  they  took  four  score  sheep  of  him 

the  said  John,  and  seventy  sheep  thereof  they  unjustly  detained'^  until, 
etc.  And  ten  sheep  residue  there  of  of  the  price  of  twenty  shillings  as 
3'et  unjusih'  detain  against  the  sureties  and  pledges,  etc.  Whereupon 
he  saith  that  he  is  the  worse,  and  hath  damage  to  tlie  value  of  £20,  and 
thereupon  he  bringeth  his  suit  and  prayeth  that  the  said  W.  and  B.  maj' 
secure  the  deliver}'  of  the  said  10  sheep  unto  him,  etc." 

"It  [replevin]  is  either  in  the  ddinet  or  detinuit.  Where  the 
slierilf  delivers  the  goods  to  the  plaintiff  the  declaration  is  in  the 
detinuit,  and  the  plaintiff  recovers  only  damages  for  the  detention, 
In  such  case,  if  the  defendant  recover,  there  is  a  general  verdict  for 
the  defendant  and  damages  for  the  detention,  on  which  there  is  a 

1  Small's  Declarations,  Eeplevin,  34;  McKelvey,  49. 

2  "The  distinction  between  the  so-called  action  of  replevin  in  the  detinuit  and  that 
in  tlie  detinet  was  never  anythinej  but  a  distinction  in  form,  and  when  it  became 
impracticable  to  make  the  distinction  it  became  obsolete."    McKelvey,  Pleading,  50. 


DECLARATIONS.  303 

judgment  per  retorno  hahendo  and  for  the  damages.  Eastman  v. 
Worthington,  5  Serg.  &  R.  130.  Where  the  goods  are  not  deliv- 
ered to  the  plaintiff,  but  are  allowed  to  remain  in  the  defendant's 
possession  upon  his  claim  of  property  and  giving  bond  for  their 
forthcoming,  or  where  the  goods  have  been  eloigned,  the  declaration 
is  in  the  detinct.  Tiie  plaintiff  recovers  the  value  of  the  goods  in 
damages ;  or,  if  the  defendant  recovers,  it  is  by  a  general  verdict  in 
his  favour.  Bower  v.  Tallman,  5  Watts  and  Serg.  556."  —  Sharswood, 
3  Blackstone's  Commentaries,  146,  note. 

"  To  show  a  good  cause  of  action  in  replevin  the  declara- 
tion should  contain  : 

"  {a)  A  statement  of  the  plaintiff's  right. 

"To  show  the  plaintiff's  right,  all  that  need  be 
alleged  is  that  the  goods,  specific  recovery  of 
which  is  sought,  were  in  the  plaintiff's  posses- 
sion at  the  time  of  the  wrongful  taking.     The 
right  not  to  have  them  interfered  with  being  a 
natural  right  follows  as  a  matter  of  course,  and 
need  not  be  alleged.     [In  the  modern  declara- 
tion in  replevin,  at  least,  it  is  usual  to  describe 
the  goods  sufficiently  for  identification,  and  to 
state  their  value.] 
*'(5)  A  statement  of  the  violation  of  the  right  by  the 
defendant,  i.  e.  a  statement  of  the  wrongful  taking 
and  detention." 
[(c)  Damages.]     McKelvey,  Common-Law  Pleading,  bo. 

TRESPASS. 

(1)  Tresjyass  to  Perso7i. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  in  Massachusetts : 

"  And  the  plaintiff  says  the  defendant  made  an  assault  upon  him, 
and  struck  him  on  his  head,  and  kept  him  imprisoned  for  the  space  of 
one  day."     Public  Statutes,  Massachusetts,  c.  167,  p.  979. 

The  following  is  a  valid  declaration  at  common  law  : 

"  Warwickshire  |      Be  it  remembered,  that  heretofore,  to  wit,  in  the 

to  wit.  j  term  of  Easter  last  past,  before  our  lord  the  king,  at 

Westminster,  came  Thomas  Lawe  by  Charles  Ballett,  his  attorney,  and 


304  CASES    ON    COMMON-LAW   PLEADING. 

hrought  here  into  the  court  of  our  said  lord  the  king,  then  there,  bis 
certain  bill  against  Thomas  King,  in  the  custody  of  the  marshall,  etc., 
of  a  i)lca  of  trespass;  and  there  are  pledges  of  prosecution,  to  wit, 
John  Doe  and  Richard  Roe,  vvliicli  said  bill  follows  in  these  words,  to 
wit  :  Warwickshire,  to  wit;  Thomas  Lawe,  gent.,  complains  of  Thomas 
King,  being  in  the  custody  of  the  marshall  of  the  raarshalsea  of  our 
lord  the  king,  before  the  king  himself,  for  that  he  on  the  1st  day  of 
April,  in  the  18th  year  of  the  reign  of  our  lord  Charles  the  Second, 
now  king  of  P^ugland,  etc.,  at  the  borough  of  Warwick,  in  the  said 
county,  with  force  and  arms,  etc.,  did  make  an  assault  upon  him  the 
said  Thomas  Lawe,  and  did  then  and  there  beat,  wound,  imprison,  and 
illtreat  the  said  Thomas  Lawe,  and  detained  and  kept  him  in  prison 
without  an}'  reasonable  cause,  against  the  will  of  him  the  said  Thomas 
Lawe.  and  against  the  law  and  custom  of  this  realm  of  England,  for  a 
long  time,  to  wit,  for  the  space  of  two  da3's,  and  other  wrongs  to  him 
then  and  there  did,  against  the  peace  of  our  said  lord  the  now  king, 
and  to  the  damage  of  the  said  Thomas  Lawe  of  £40 ;  and  therefore  he 
brings  suit,  etc."     From  Lawe  v.  King,  1  Saunders'  Rep.,  76. 

Formal  Allegations  Peculiar  to  the  Trespasses. 

"  The  writs  of  trespass  are  closely  connected  with  the  appeals  for 
felony.  The  action  for  trespass  is,  we  may  say,  an  attenuated  ap- 
peal. The  charge  of  felonia  is  omitted ;  no  battle  is  offered ;  but 
the  basis  of  the  action  is  a  wrong  done  to  the  plaintiff  in  his  body, 
his  goods,  or  his  land,  '  by  force  and  arms  against  the  king's  peace.' 
In  course  of  time  these  sonorous  words  will  become  little  better 
than  a  hollow  sound ;  there  will  be  trespass  with  force  and  arms  if 
a  man's  body,  goods,  or  land  have  been  unlawfully  touched.  From 
this  we  may  gather  that  the  courts  had  never  taken  very  seriously 
the  '  arms  '  of  the  writ,  or  fixed  a  minimum  for  the  force  that  would 
beget  an  action."     2  Pollock  and  Maitland,  525. 

MELWOOD   V.  LEECH. 

In  the  King's  Bench.     1701. 

Reported  I  Lord  Raymond,  38. 

Trespass.  The  words  contra  paccm  were  omitted  in  the  declara- 
tion, and  therefore  after  execution  of  a  writ  of  inquiry  judgment 
was  arrested  upon  motion.  But  Holt,  Chief  Justice,  seemed  to  in- 
cline that  it  would  have  been  good  after  verdict. 

"  In  the  statement  of  the  trespasses,  the  words  '  with  force  and 
arms '  {vi  et  armis)  should  be  adopted,  though  the  only  mode  of 


DECLARATIONS.  305 

taking  advantage  of  the  omission  is  by  special  demurrer :  and  in 
common  pleas,  when  the  words  appear  in  the  recital  of  the  sup- 
posed writ,  and  not  in  the  count  part,  it  is  sufficient ;  and  in  one 
case  Lord  Holt  said,  that  these  words  might  be  omitted  ;  and  there 
is  an  express  legislative  provision  to  this  effect  in  regard  to  indict- 
ments."    1  Chitty,  Pleading,  387. 

BENSON   V.  BACON. 

Supreme  Court,  Indiana.     1884:. 
Reported  99  Indiana,  156. 

Elliott,  J.^  The  first  paragraph  of  the  complaint  seeks  to  recover 
for  injuries  resulting  from  an  assault  and  battery  alleged  to  have 
been  committed  upon  the  appellee  by  the  appellant.  The  objection 
urged  to  this  paragraph  of  the  complaint  is  that  it  does  not  employ 
the  word  "  unlawful "  in  charging  the  assault  and  battery.  The 
approved  precedents  do  not  contain  the  word  unlawful  or  its  equiv- 
alent, and  we  are  not  willing  to  hold  the  complaint  bad  because  of 
the  omission  to  use  this  term.  2  Works,  Pr.  645  ;  2  Chitty,  Pleading, 
(13  Am.  ed.)  852  ;  Bullen  &  Leake,  Prec.  411  ;  Oliver,  Prec.  719  ;  1 
Estee,  PL  560.  It  is  true  that  in  indictments  it  is  necessary  to  use 
the  term  unlawful  or  its  equivalent,  but  it  is  well  known  that  there 
is  an  essential  difference  between  civil  actions  and  criminal  prosecu- 
tions. Howard  v.  State,  67  Ind.  401.  If,  however,  we  are  in  error 
in  yielding  to  the  authority  of  the  precedents  which  have  so  long 
ruled  pleaders,  we  should  still  be  compelled  to  hold  the  pleading 
good.  The  reason  for  this  is  that  the  facts  specifically  pleaded 
show  that  the  assault  and  battery  was  an  unlawful  one.  Bloom  v. 
Franklin  Life  Ins.  Co.,  97  Ind.  478  ;  Norris  v.  Casel,  90  Ind.  143. 

(2)    Trespass  De  Bonis  Asportatis. 

The  following  is  a  valid  declaration  at  common  law. 
(No  form  is  presented  in  the  Massachusetts  statute.) 


(a)  For  the  total  destruction  of  a  chattel. 

] 

came  George  Wnglit  by  Francis  Gregg,  bis  attorney,  and  brought  here 
into  the  court  of  our  said  lord  the  kuig  then  there,  his  certain  bill 


Derbyshire,    )      Be  it  remembered,  that  heretofore,  to  wit,  in  Easter 
to  wit.         (  tei-m  last  past,  before  our  lord  the  kingat  Westminster, 


^  A  part  of  tlie  opinion  is  omitted. 
20 


306  CASES   ON   COMMON-LAW   PLEADING. 

against  Ralph  Ramscot  in  the  custody  of  the  marshal,  etc.,  of  a  plea 
of  trespass  ;  and  there  are  pledges  of  prosecution,  to  wit,  John  Doe  and 
Richard  Roe,  which  said  bill  follows  in  these  words,  to  wit ;  Derbyshire 
to  wit,  George  Wright  complains  of  Ralph  Ramscot,  being  in  the  cus- 
tod}'  of  the  marshal  of  the  marshalsea  of  our  lord  the  king,  before  the 
king  himself,  for  that  he,  on  the  first  da}'^  of  April,  in  the  17th  year 
of  the  reign  of  our  lord  Charles  the  Second,  now  king  of  England, 
etc.,  with  force  and  arms,  did  so  grievously  beat,  strike,  and  with  a 
certain  knife  stab,  a  mastiff  dog  of  him  the  said  George,  of  the  price  of 
100  5.  at  Castleton  aforesaid,  in  the  county  aforesaid,  then  and  there 
being  found,  that  by  reason  thereof,  the  said  mastiff  died  ;  and  other 
wrongs  to  him  did,  against  the  peace  "of  our  said  lord  the  now  king, 
and  to  the  damage  of  him  the  said  George  of  £10,  and  therefore  he 
brings  suit,  etc.     From  Wright  v.  Ramscot,  1  Saunders'  Rep.,  84. 


(b)  For  the  asportation  of  a  chattel. 

"  In  trespass  for  taking  and  carrying  away  the  plaintiffs  goods, 
it  is  absolutely  essential  to  state  that  the  goods  were  the  plaintiff's 
goods ;  the  plaintiff's  title  to  recover  rests  on  that  point,  and  the 
omission  is  not  cured  by  a  verdict.  But  if  the  defendant's  plea 
shows  that  the  goods  were  in  the  possession  of  the  plaintiff,  the 
declaration  will  be  aided. 

"  The  goods  must  be  set  forth  with  certainty  in  the  declaration, 
so  that  the  defendant  may  be  able  to  justify ;  or,  in  case  of  a  re- 
covery against  him,  to  plead  it  in  bar  of  another  action  for  the 
same  goods. 

"  The  value  of  the  goods  should  be  mentioned.  The  omission  to 
state  the  value  of  the  goods  is  aided  by  a  verdict,  but  uncertainty 
in  specifying  the  goods  is  not."     Oliver's  Precedents,  298. 

BURSER   against  MARTIN;   vel  PURSER   against  WALTER. 

In  the  King's  Bench.     1601:. 

Reported  Cro.  Jac.  46. 

Trespass.  Quare  equunn  cepit  h  persond  of  the  plaintiff.  The 
defendant  pleaded  Not  Guilty,  and  it  was  found  against  him.  An 
exception  was  taken  in  arrest  of  judgment,  because  he  doth  not 
say  eqnum  suum,  or  that  he  was  taken  from  the  plaintiff's  posses- 
sion ;  for  otherwise  it  may  be  that  the  plaintiff'  had  not  any  cause 
of  action,  if  he  had  not  property  or  possession ;  and  it  may  be,  for 
anything  which  appears  in  this  declaration,  that  he  had  not  any 
of  them ;  wherefore  the  declaration  is  not  good. 


J 


DECLARATIONS.  307 

Gawdy,  Fenner,  and  Yelverton  were  of  that  opinion ;  and  thnt 
the  declaration  cannot  be  aided  by  intendment,  but  ought  to  be 
certain. 

Popham  and  Williams,  e  contra ;  because  it  being  alleged  quod 
cepit  d,  persona,  it  is  necessarily  to  be  intended  that  he  had  posses- 
sion. Wherefore,  etc.  But  notwithstanding,  afterwards,  upon  a 
second  motion  for  the  reasons  aforesaid,  it  was  adjudged  for  the 
defendant.^ 

The  declaration  in  trespass  de  bonis  asportatis  contains 

1.  A  general  description  of  the  chattels,  and  the  facts 

constituting  the  plaintiff's  title  and  right  to  pos- 
session, or  an  allegation  of  the  plaintiff's  actual 
possession  at  the  time  of  taking. 

2.  A  taking  by  the  defendant  with  force  and  arms. 

3.  Damages  for  the  taking. 

4.  Conclusion  against  the  peace. 

(3)    Trespass  to  Land. 

The  following  is  a  valid  declaration  under  the  Practice 
Act  of  Massachusetts  : 

"And  the  plaintiff  says  the  defendant  forcibly  entered  the  plaintiff's 
close  (describing  it),  and  ploughed  up  the  soil,  etc."  Public  Statutes, 
Massachusetts,  c.  167,  p.  979. 

The  following  is  a  valid  declaration  at  common  law : 

Derbyshire,  |  Be  it  remembered,  that  heretofore,  to  wit,  in  Easter 
to  wit.  \  term  last  past  before  our  lord  the  king  at  Westminster, 
came  Henry  Mellor,  gent.,  by  Akired  Motteram,  his  attorney,  and 
brought  here  into  the  court  of  our  said  lord  the  king,  then  there,  his 
certain  bill  against  Edward  Walker,  of  Derby,  in  the  county  of  Derby, 
gent.,  in  the  custody  of  the  marshal,  etc.,  of  a  plea  of  trespass,  and 
there  are  pledges  of  prosecution,  to  wit,  John  Doe  and  Richard  Roe, 
which  said  bill  follows  in  these  words,  that  is  to  say,  Derbyshire,  to 
wit,  Henry  Mellor,  gent.,  complains  of  Edward  Walker,  of  Derby,  in 
the  County  of  Derby,  gent.,  being  in  the  custody  of  the  marshal!  of  the 
marshalsea  of  our  lord  the  king,  before  the  king  himself,  for  that  lie, 
on  the  1st  day  of  April,  in  the   21st  year  of  the  reign  of  our  lord 

1  This  case  was  rightly  decided.  —  Ed,  "  The  plea  of  every  man  shall  be  construed 
strongly  against  him  that  pleadeth  it,  for  everie  man  is  presumed  to  make  the  best  of 
his  owne  case;  a/nhif/iium  p/aritum  interpretari  debet  contra  proferenlum."  Co.  Litt. 
303  b.     The  attempted  averment  of  possession  is  also  argumentative. 


308  CASES   ON    COMMON-LAW    PLEADING. 

Charles  the  Second,  now  king  of  England,  etc.,  with  force  and  arms, 
broke  and  entered  the  close  of  him  the  said  Henr}-,  called  Littlefield,  at 
Derby,  in  the  count}'  of  Derb}',  and  with  his  feet  in  walking,  and  with 
his  certain  cattle,  to  wit,  horses,  bulls,  oxen,  cows,  swine  and  shee[), 
eat  up,  trod  down,  and  consumed  his  grass  to  the  value  of  4:0  s.  then 
and  there  lately  growing,  and  other  wrongs  to  him  did  against  the 
peace  of  our  said  lord  the  now  king,  and  to  the  damage  of  him  the 
said  Henry  of  £20,  and  therefore  he  brings  suit,  etc.  From  Mellor  v. 
Walker,  1  Saunders'  Rep.  339. 

The  declaration  in  trespass  quare  clausum  f  regit  contains  : 

1.  A  description  of  the  property  sufficient  for  identifi- 

cation, particularly  as  to  the  county  in  which 
the  land  is  located. 

2.  An  allegation  of  plaintiff's  actual  possession  thereof 

at  the  time  of  the  entry. 

3.  Entry  by  defendant  with  force  and  arms. 

4.  Damages  for  the  entry. 

5.  Conclusion  against  the  peace. 

CASE. 

For  Injury  to  Plaintiff's  Reputation. 

"  The  king's  court  [in  ancient  times]  gave  no  action  for  defama- 
tion. This  in  our  eyes  will  seem  both  a  serious  and  a  curious 
defect  in  the  justice  that  it  administered.  What  is  usually  counted 
the  first  known  instance  of  such  an  action  comes  from  the  year 
1356,^  and  even  in  that  instance  the  slander  was  complicated  with 
contempt  of  court.  [The  words  were,  "Treitour,  felon,  robber."] 
In  1295  2  a  picturesque  dispute  between  two  Irish  magnates  had 
been  removed  to  Westminster,  and  Edward  I.'s  court  declared  in 
solemn  fashion  that  it  would  not  entertain  pleas  of  defamation  ;  in 
the  Irish  court  battle  had  been  waged.  At  the  end  of  the  middle 
ages  we  may  see  the  royal  justices  beginning  to  reconsider  their  doc- 
trine and  to  foster  '  an  action  on  the  case  for  words.' "  2  Pollock 
and  Maitland,  536. 

1  Lib.  Ass.  L  177,  pi.  19  (30  Edw.  IIL). 

2  Rot.  Pari.  i.  133:  "  et  non  sit  usitatum  in  regno  isto  placitare  in  curia  regis  placita 
de  defnmationihns."  But  words  of  shame  were  puuishable  in  the  local  courts.  2 
rollock  aud  Maitland,  537. 


DECLARATIONS.  309 


Slander. 

The  following  is  .a  valid  declaration  under  the  Practice 
Act  of  Massachusetts  : 

"And  the  plaintiff  says  that  the  defendant  publicly,  falsely,  and 
maliciously  accused  the  plaintiff  of  the  crime  of  perjury,  by  words 
spoken  of  the  plaintiff  substantially  as  follows.  (Here  set  forth  the 
words  —  no  iniuiendoes  are  necessar}-.) 

"If  the  natural  import  of  the  words  is  not  intelligible  without 
further  explanation,  or  reference  to  facts  understood  but  not  men- 
tioned, or  parts  of  the  conversation  not  stated,  in  either  of  those  cases, 
aftef  setting  fortli  the  words,  the  declaration  should  contain  a  concise 
and  clear  statement  of  such  things  as  are  necessary-  to  make  the  words 
relied  on  intelligible  to  the  court  and  jury  in  the  same  sense  in  which 
they  were  spoken.  The  rule  is  applicable  to  actions  for  written  and 
printed,  as  well  as  oral,  slander."  Public  Statutes,  Massachusetts,  c. 
167,  p.  979. 

The  following  is  a  declaration  in  slander  at  common 
law. 

FOR  WORDS  CHARGING  A  SINGLE  WOMAN  WITH  INCON- 
TINENCE, SPECIAL  DAMAGE,  LOSS  OF  MARRIAGE. 

For  that  whereas,  the  plaintiff  now  is  a  virgin  and  a  chaste  woman, 
and  from  the  time  of  her  nativity  hath  been  so,  and  hath  been  ac- 
counted, esteemed,  and  reputed  as  such  among  her  neighbors,  as  well 
as  of  good  reputation  and  fame  by  all  other  good  people,  and  hath 
all  iier  lifetime  continued  untouched  and  unsuspected  of  the  atro- 
cious crimes  of  adultery  or  fornication,  or  any  such  other  enormous 
crimes  ;  whereby  many  good  people  have,  at  sundry  times,  desired  to 
take  the  said  plaintiff  to  be  their  wife,  and  in  particular  one  C.  C,  who, 
at  the  time  of  speaking  the  false  and  scandalous  words  hereafter  men- 
tioned, was  lawfully  outpublished  to  the  said  plaintiff.  Nevertheless, 
the  said  H,  though  well  knowing  the  premises,  but  contriving  mali- 
ciously and  wickedly  to  injure  and  defame  the  plaintiff  in  her  good 
name  and  reputation,  and  to  bring  her  to  disgrace  and  infamy,  and  to 
deprive  her  of  her  marriage  with  said  C.  C,  and  to  subject  her  to  the 
penalties  and  punishments  provided  by  law  in  cases  of  adultery  and 
fornication,  on,  etc.,  at,  etc.,  in  presence  of  divers  good  peoi)le  of  tliis 
Commonwealth,  did  loudly  and  publicly  speak,  utter,  and  repeat  the 
following  false,  malicious,  and  scandalous  words  of  and  concerning  the 
plaintiff,  to  wit,  "that  she  (meaning  the  plaintiff)  was  a  whore  to  a 
man  that  courted  her"  (i.  e.  the  plaintiff)  ;  and  other  further  malice, 


310  CASES    ON   COMMON-LAW   PLEADING. 

did  then  and  there,  in  presence  of  divers  good  people,  falsely  and  mali- 
ciously publish  and  declare,  "that  she  (meaning  the  plaintiff)  had  a 
luisband  in  Ireland;  "  and  of  her  further  malice,  on,  etc.,  at,  etc.,  in 
the  presence  and  hearing  of  divers  good  people,  did  pronounce,  utter, 
and  publish  the  following  false  and  scandalous  words,  to  wit,  *'  that 
her  sister's  apparition  (moaning  the  apparition  of  the  sister  of  the 
plaintiff)  appeared  to  me  (meaning  the  said  E.)  that  niglit  before,  and 
told  me  (meaning  the  said  E.)  that  she  (meaning  the  plaintiff)  was  a 
damned  whore,  and  that  she  (meaning  the  plaintiff)  had  lodged  witli 
her  brother  (meaning  the  said  E.'s  brother)  tliat  night ; "  by  means  of 
which  false,  scandalous,  and  malicious  words,  so  spoken  and  published, 
the  plaintiff  hath  fallen  into  disgrace,  contempt,  aud  infam}-  with  sev- 
eral persons  with  whom  previously  she  was  in  great  esteem  ;  and  also 
the  said  C.  C,  who  had  solicited  her  in  marriage,  and  to  whom  she  .was 
outpublished  as  aforesaid,  hath  since  neglected  and  utterly  refused  to 
niarr}'  her,  the  plaintiff,  and  still  continues  so  to  do  ;  whereby  the  plain- 
tiff hath  not  only  lost  her  credit  and  reputation,  but  hath  also  lost 
her  preferment  in  marriage,   etc.     Oliver,  Precedents,  500.^ 

CASE   OF    SLANDER. 

In  the  Common  Pleas.     1587, 

Reported  Owen,  30. 

Brook  said  that  if  a  man  speak  many  slanderous  words  of  an- 
other, he  who  is  slandered  may  have  an  action  on  the  case  for  any 
one  of  these  words,  and  may  omit  the  others." 

JONES   V.    HERNE. 

In  the  Common  Pleas.     1759, 

Reported  2  Wilson,  87. 

Action  of  slander  for  these  words,  viz. "  You  (meaning  the  plaintiff) 
are  a  rogue,  and  I  (meaning  the  defendant)  will  prove  you  a  rogue, 
for  you  forged  my  name."  No  special  damage  was  laid  in  the 
declaration  ;  there  was  a  verdict  for  the  plaintiff  upon  Not  guilty ; 
and  it  was  now  moved  by  Serjeant  Nares  in  arrest  of  judgment, 
that  these  words  are  not  actionable ;  to  prove  which  he  cited  3 
Leon.  231,  pi.  313,  where  the  words,  "Thou  hast  forged  my  hand," 
were  held  not  actionable.  But  per  totam  curiam,  the  saying  a  man 
is  a  forger,  or  has  forged  one's  hand,  is  actionable ;  and  they  over- 
ruled this  case  in  3  Leon.    Willes,  C.  J.,  also  said  that  if  it  was  now 

1  The  statement  of  the  requisites  of  this  declaratiou  is  omitted.     From  the  follow- 
ing cases,  the  student  may  determine  them. 
^  Part  of  Brook's  observation  is  omitted. 


DECLARATIONS.  311 

res  Integra,  lie  should  hold  that  calling  a  man  a  rogue,  or  a  woman 
a  whore,  in  public  company,  were  actionable. 

Judgment  for  the  plaintiff. 

JOHNSON  V.  SIR  JOHN   AYLMER. 

In  the  King's  Bench.     1605. 

Reported  Croke's  James,  126. 
Innuendo. 

Action ;  for  that  the  defendant  hcec  falsa  et  scandalosa  verba 
sequentia  dixit  et  publicavit,  viz.  "Mr.  Price,  you  do  my  Lord 
Burleigh  wrong,  that  you  do  not  apprehend  Jeremy  Johnson," 
innuendo  the  plaintiff,  "  for  a  felon,  and  seize  his  goods  ;  for  he  " 
innuendo  the  plaintiff,  "hath  stolen  a  sheep  from  Wright,  of 
Rirsby,"  innuendo  John  Wright. 

The  defendant  pleaded  not  guilty  ;  and  found  against  him,  and 
damages  assessed  to  £50. 

After  verdict,  it  was  moved  in  arrest  of  judgment  that  the  words 
are  too  generally  laid  to  maintain  the  action ;  for  they  are  not  al- 
leged to  be  spoken  of  the  plaintiff  in  the  writ  or  count ;  but  only  in 
reciting  the  words  he  saith,  innuendo  the  plaintiff;  and  the  innu- 
endo, without  expressly  alleging  the  words  to  be  spoken  of  the 
plaintiff,  will  not  maintain  the  action. 

And  the  court  was  of  that  opinion ;  wherefore  it  was  adjudged 
for  the  defendant. 


GARFORD  AND  HIS  WIFE  v.  CLERK  AND  HIS  WIFE. 
In  the  Common  Pleas.     1.598. 
Reported  Choke's  Elizabeth,  857. 
Words  "  of  the  following  tenor." 

Action ;  for  that  the  defendant's  wife  spake  of  the  wife  of  the 
plaintiff  qucedam  falsa  et  scandalosa  verba,  quorum  tenor  sequitur 
in  hcec  verba,  "  Thou  art  an  arrant  whore,  and  an  old  worm-eaten 
jade,  and  one  of  thy  sides  hath  been  eaten  out  with  the  pox."  The 
defendants  pleaded  not  guilty,  and  found  against  them.  And  it 
was  moved  in  arrest  of  judgment  that  the  words  should  not  main- 
tain an  action ;  and  that  the  declaration  was  not  good,  because  it  is 
not  an  express  allegation  that  she  spake  the  same  words. 

And  for  this  cause  the  whole  court  held  the  declaration  to  be  ill ; 
for  something  might  be  omitted  in  the  quorum  tenor,  etc.,  which 
was  within  the  words,  which  would  cause  the  .words  not  to  be 
actionable ;  and  though  it  be  an  usual  course  to  plead  a  deed  or 
record  cuj us, tenor,  etc.,  that  is  because  the  deed  or  record  might  be 


312  CASES   ON   COMMON-LAW   PLEADING. 

viewed  whether  it  agrees  with  the  recital.  "Wherefore  the  judg- 
ment was  stayed.  But  as  to  the  words  themselves,  the  court  held 
them  to  be  actionable. 


HEMMINGS   V.  GASSON. 

Ix  THE  Queen's  Bench.     1858. 

Reported  Ellis,  Blackburn,  and  Ellis,  346. 

Colloquium. 

Action  for  libel  and  slander.  The.  first  count  of  the  declaration 
stated  that  the  defendant  falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  the  words  following,  that  is  to  say  :  "  What 
do  you  think  of  my  job  ?  I  am  satisfied  who  it  was  got  into  my 
shop,  as  George  Hearmon  tells  me  that  he  met  Hemmings  (mean- 
ing the  plaintiff)  and  his  son  about  four  o'clock  the  morning  my 
shop  was  broken  into  :  I  found  part  of  a  letter  on  the  floor  of  my 
shop,  which  was  in  the  handwriting  of  Hemmings  ;  "  meaning,  by 
the  false  and  malicious  words  aforesaid,  that  the  plaintiff  had  forci- 
bly and  with  a  strong  hand  broken  and  entered  the  defendant's 
sliop,  and  had  wilfully  and  maliciously,  and  within  three  calendar 
months  then  last  past,  cut,  damaged,  and  destroyed  the  defendant's 
property  in  the  said  shop,  to  wit,  household  furniture  of  the  de- 
fendant, contrary  to  the  statute  in  such  case  provided,  and  had 
committed  criminal  offences  punishable  by  law. 

Plea,  Not  guilty.     Issue  thereon. 

The  jury  returned  a  verdict  for  the  plaintiff:  damages,  £40. 

Ballantine,  in  last  Hilary  term,  obtained  a  rule  to  show  cause 
why  the  judgment  should  not  be  arrested  on  the  ground  that  the 
innuendo  was  unsupported  by  the  words  and  writing. 

Parry  and  A.  Wills  now  showed  cause.^  It  is  contended  by  the 
other  side  that  that  count  is  bad,  in  arrest  of  judgment,  inasmuch 
as  there  is  no  colloquium.  But  that  is  no  longer  necessary.  The 
Common  Law  Procedure  Act,  1852,^  enacts  that  "in  actions  of  libel 
and  slander  the  plaintiff  shall  be  at  liberty  to  aver  that  the  words 
or  matter  complained  of  were  used  in  a  defamatory  sense,  specify- 
ing such  defamatory  sense  without  any  prefatory  averment  to  show 
how  such  words  or  matter  were  used  in  that  sense,  and  such  aver- 
ment shall  be  put  in  issue  by  the  denial  of  the  alleged  libel  or 
slander ;  and  where  the  words  or  matter  set  forth,  with  or  without 
the  alleged  meaning,  show  a  cause  of  action,  the  declaration  shall 
be  sufficient." 

1  Before  Lord  Campbell,  C.  J.,  Coleridge,  Erie,  and  Crompton,  Js. 
a  15  &  16  Vict.  c.  76. 


DECLARATIONS.  3 1  3 

Lord  Campbell,  C.  J.  Upon  the  first  point,  in  arrest  of  judgment, 
we  are  all  agreed  that  §  61  of  the  Common  Law  Procedure  Act, 
1852,  and  the  two  forms  in  schedule  (B.)  to  that  act,  enable  the 
pleader  to  put  any  construction  he  pleases  upon  the  words  com- 
plained of,  by  innvendo  ;  and  that  it  is  for  the  jury  to  say  whether 
the  words  were  spoken  with  such  meaning. 

BARHAM  V.  NETHERSALL. 

In  the  Queen's  Bench.    1602. 
Reported  Yelverton,  22. 

The  plaintiff  declared  that  whereas,  etc.,  the  defendant  such  a  day 
spoke  these  words  :  T.  Barham  {innuendo  the  plaintiff)  hath  burnt 
my  barn  {innuendo  my  barn  at  such  a  place  full  of  corn)  and  that 
with  his  own  hand ;  and  upon  non  culp.  pleaded,  it  was  found  for 
the  plaintiff,  and  alleged  in  arrest  of  judgment  that  the  action  did 
not  lie ;  for  these  words,  the  plaintiff  hath  burnt  my  barn,  are  no 
slander ;  for  such  burning  of  an  house  is  but  a  trespass,  and  all  one 
as  if  he  had  said,  the  plaintiff  hath  cut  down  my  trees,  and  such 
like ;  for  to  say  a  man  has  committed  a  trespass  is  no  slander ;  and 
then  the  innuendo  (my  barn  full  of  corn)  will  not  help  the  matter; 
for  it  is  the  nature  of  an  innuendo  to  explain  doubtful  words, 
where  there  is  matter  sufficient  in  the  declaration  to  maintain  the 
action.  But  if  the  words  before  the  innuendo  do  not  sound  in 
slander,  no  words  produced  by  the  innuendo  will  make  the  action 
maintainable ;  for  it  is  not  the  nature  of  an  innuendo  to  beget  an 
action.  And  all  this  was  allowed  by  Gawdy  and  Yelverton,  jus- 
tices (being  alone  in  the  King's  Bench),  and  judgment  quod  nil 
capiat  per  hillam. 

TINDALL  V.    MOORE. 

In  the  Common  Pleas.     1758. 

Reported  2  Wilson,  114. 

This  was  an  action  of  slander,  upon  several  sets  of  words  spoke 
by  the  defendant  of  the  plaintiff';  verdict  for  the  plaintiff  upon  the 
first  and  fifth  sets  of  words,  damages  40  s.  The  first  set  were  these. 
That  rogue  Jo.  Tindall  (meaning  the  plaintiff)  that  set  the  house 
on  fire  (meaning  the  summer-house  that  was  burnt,  in  the  occupa- 
tion of  one  Mr.  Cotton),  and  if  anybody  will  give  me  charge  of  him, 
I  will  carry  him  to  New  Prison.  —  The  fifth  set  of  words  were 
these:  Jo.  Tindall  (meaning  the  plaintiff)  set  the  house  on  fire, 
(meaning  the  same  house). 


314  CASES   ON    COMMON-LAW   PLEADING. 

It  was  now  moved  in  arrest  of  judgment  that  the  latter  set  of 
words  were  not  actionable,  for  that  every  count  in  a  declaration  is 
a  substantive  count,  and  the  innuendo  (meaning  the  same  house) 
shall  not  relate  to  the  summer-house  mentioned  in  the  first  set  of 
words. 

Per  curiam.  Although  the  latter  set  of  words  be  not  of  them- 
selves actionable,  yet  they  shall  have  relation  to  the  former  set ; 
and  we  must  take  them  to  have  been  spoken  maliciously,  as  the 
jury  have  found  for  the  plaintiff. 

Judgment  for  plaintiff.  Davy  for  the  defendant,  Nares  for  the 
plaintiff 

CASTLEMAN  v.   HOBBS. 

In  the  Queen's  Bench.     1594. 

Eeported  Owen,  57. 

In  an  action  of  the  case  for  saying.  Thou  hast  stolen  half  an  acre 
of  corn,  {innuendo)  corn  severed,  the  defendant  demurred  upon  the 
declaration. 

Tenner.    It  is  not  a  felony  to  move  grain  and  take  it  away. 

Popham  agreed  to  it,  and  that  the  word  inmiend o  \NOVi\&  not  alter 
the  case,  unless  the  precedent  words  had  vehement  presumption, 
the  corn  was  severed ;  and  in  this  case  no  man  can  think  that  the 
corn  was  severed,  when  the  words  are,  half  an  acre  of  corn ;  on 
the  contrary,  if  the  words  had  been,  that  he  had  stolen  so  many 
loads  or  bushels  of  corn :  and  Gawdy  was  of  the  same  opinion,  and 
judgment  against  the  plaintiff,  etc. 


BROWNE   V.   BRINKLEY. 

In  the  Queen's  Bench.     1594. 

Reported  Owen,  58. 

In  an  action  of  the  case  for  words ;  the  declaration  was,  that  the 
plaintiff  w^as  produced  as  a  witness  before  the  justices  at  the  Assises 
at  Darby,  where  he  deposed  in  a  certain  cause,  and  the  defendant 
said,  Browne  was  disproved  before  the  Justices  of  Assise  at  Darby, 
before  Mr.  Kingsley  {innuendo)  that  he  was  disproved  in  his  oath, 
that  he  took  before  the  justices ;  and  adjudged  against  the  plaintiff, 
for  although  he  was  disproved  in  his  oath,  yet  it  is  not  actionable 
in  this  case,  for  that  disproof  might  be  in  any  collateral  matter,  or 
any  circumstances  ;  but  otherwise  if  the  words  had  been,  that  he 
was  perjured,  and  the  {innuendo)  will  not  help  the  matter,  and  so 
it  was  adjudged.  The  Chief  Justice  and  Feuner  being  only  in  the 
court. 


DECLARATIONS.  315 

BEAVOR   V.    HIDES. 

In  the  Common  Pleas.     1765. 

Eeported  2  Wilson,  300. 

Essentials  of  a  declaration  npon  the  words,  "  He  was  put  in  the  round-house 
for  stealing  ducks  at  Crowland." 

Action  for  scandalous  words  ;  five  sets  were  laid  in  the  declara- 
tion, and  upon  the  general  issue,  there  was  a  general  verdict  for  the 
plaintiff  upon  the  whole  declaration  ;  one  of  the  sets  of  words  were 
these,  viz.  He  (meaning  the  plaintiff")  was  put  into  the  round-house 
for  stealing  ducks  at  Crowland,  which  were  alleged  to  be  spoken  of 
the  plaintiff  by  the  defendant  falsely  and  maliciously.  And  it  was 
moved  in  arrest  of  judgment  that  the  words  were  not  actionable, 
for  the  defendant  doth  not  say  expressly  that  he  stole  the  ducks, 
like  the  case  in  Cro.  Eliz.  234.  "  I  have  served  thee  with  the 
Queen's  letter  for  stealing  goods  in  ray  mother's  house,"  were  held 
not  actionable.  "  Thou  art  a  false  knave,  thou  wast  arraigned  for 
two  bullocks,"  held  not  actionable.  Cro.  Eliz.  279,  and  it  was  said 
if  the  words  had  been, "Thou  art  a  false  knave, thou  wast  arraigned 
for  stealing  two  bullocks,"  these  words  would  not  have  been  ac- 
tionable, for  a  man  may  be  arraigned  for  felony,  and  yet  no  felon. 
"  James  Steward  is  in  Warwick  gaol  for  stealing  a  mare  and  other 
beasts  ; "  after  verdict  the  whole  court  gave  their  opinion  seriatim, 
that  these  words  would  not  bear  an  action,  for  they  do  not  affirm 
directly  that  he  did  steal  the  beasts.     Hob.  177. 

In  answer,  it  was  said  for  the  plaintiff  that  these  words  are 
alleged  to  be  falsely  and  maliciously  spoken  of  the  plaintiff  by  the 
defendant,  and  the  jury  have  found  that  they  were  so  maliciously 
and  falsely  spoken,  like  the  case  in  Cro.  Car.  268.  "He  was  ar- 
raigned at  Warwick  for  stealing  of  twelve  hogs,  and  if  he  had  not 
made  good  friends  it  had  gone  hard  with  him ; "  uhi  re  verci  he 
never  was  arraigned  for  felony.  After  a  verdict,  these  words  were 
held  to  be  actionable,  being  laid  to  be  spoken  falsely  and  mali- 
ciously. "Thou  art  a  clipper,  and  thy  neck  shall  pay  for  it;"  after 
a  verdict  held  actionable,  though  the  word  clipper  be  ambiguous. 
Skin.  183.  "  You  are  a  rogue,  and  broke  open  a  house  at  Oxford, 
and  your  grandfather  was  forced  to  bring  over  j£40  to  make  up  the 
breach,"  held  actionable,  though  the  word  rogue  is  not;  and  break- 
ing open  a  house  is  only  a  trespass.  Skin.  364.  "He  was  sent  to 
prison  for  running  wool,"  held  to  be  actionable  by  Lee,  C.  J.,  at 
Guildhall;  "He  was  whipt  about  Taunton  castle  for  stealing  sheep," 
were  held  actionable.     1  Eo.  Abr.  50,  pi.  9. 

This  motion  in  arrest  of  judgment  was  made  in  Michaelmas  term 
last,  when  the  court  thought  the  cases  cited  for  the  defendant  were 
in  point,  that  these  words  are  not  actionable. 


316  CASES   ON   COMMON-LAW   PLEADING. 

Lord  Camden  said,  If  we  should  judge  these  words  actionable, 
many  actions  would  arise  at  every  assizes  in  the  kingdom,  where 
the  common  topic  of  conversation  is,  that  such  a  man  was  sent  to 
gaol  for  such  a  crime,  and  such  a  one  was  arraigned,  and  tried,  etc., 
etc.,  and  if  such  words  are  true,  where  is  the  slander,  saying,  "  a 
man  was  whipt,"  if  the  words  are  true  is  no  slander. 

Bathurst,  Justice,  also  inclined  to  think  the  words  were  not 
actionable,  but  thought  that  if  this  particular  set  of  words  were 
not  proved  at  the  trial,  the  postea  (upon  tiie  judge's  certificate  that 
they  were  not  proved)  might  be  amended,  and  a  verdict  for  the 
defendant  entered  as  to  this  set  of  words,  if  any  precedent  for  it 
could  be  found;  for  he  said,  if  theywere  not  proved,  the  plaintiff 
ought  not  to  have  had  a  verdict  upon  them  ;  but  if  this  cannot  be 
done,  he  thought  the  cases  cited  for  the  defendant  so  strongly  in 
point  that  the  court  were  bound  by  them.  Gould,  Justice,  was  of 
the  same  opinion,  and  said  the  case  in  Hob.  177,  was  so  strong  for 
the  defendant,  and  so  solemnly  determined,  that  he  could  not  well 
go  over  it. 

Lord  Camden  (in  answer  to  Mr.  Justice  Bathurst)  said  it  would 
be  very  dangerous  after  a  verdict  of  twelve  men  recorded  by  the 
court  to  refer  to  the  judge's  notes,  in  order  to  alter  it;  and  he 
thought  there  was  no  precedent  of  such  a  case,  and  that  a  verdict 
cannot  be  varied.  And  the  court  at  this  time  pronounced  that  the 
judgment  must  be  arrested,  unless  cause  the  last  day  of  the  term 
(Hilary  term  last).  But  at  that  day  they  adjourned  it  for  further 
consideration  ;  and  after  having  taken  time  till  this  term,  the  court 
changed  their  opinion,  and  gave  judgment  for  the  plaintiff,  that  the 
words  were  actionable. 

Lord  Camden.  Upon  considering  this  case  more  fully,  we  are 
now  all  of  opinion  that  these  words,  being  laid  in  the  declaration 
to  be  spoken  falsely  and  maliciously  of  the  defendant,  are  action- 
able; we  must  take  it  upon  this  record  that  the  plaintiff  was  really 
not  put  in  the  round-house  or  imprisoned  for  stealing  of  ducks, 
because  the  jury  have  found  that  the  words  were  falsely  spoken ; 
the  words  clearly  import  that  the  plaintiff  had  been  guilty  of  a 
crime,  and  if  the  fact  had  been  true  the  defendant  might  and.  ought 
to  have  justified;  if  we  should  arrest  the  judgment,  the  malevolent 
would  think  the  plaintiff  had  been  guilty  of  the  crime  falsely  im- 
puted to  him,  and  the  good-natured  could  not  help  suspecting  him 
to  have  been  so.  "We  lay  great  stress  upon  the  word  false ;  if 
words  are  true,  they  are  no  slander,  but  may  be  justified.  The  ob- 
jection here  is,  that  the  words  do  not  expressly  allege  that  the 
plaintiff  stole  ducks ;  but  words  are  to  be  taken  according  to  the 
common  parlance,  and  to  be  spoken  in  the  worst  sense  according 
to  the  common  understanding  of  the  bystanders.  Cro.  Jac.  154. 
"  I  know  what  I  am,  I  know  what  Snell  is,  I  never  buggered  a 
mare;"  it  was  objected  these  words  were  not  actionable,  for  they 
do  not  charge  the  plaintiff  with  buggery ;  but  the  court  said  they 


DECLARATIONS.  317 

implied  a  charge  of  buggery,  and  gave  judgment  for  the  plaintiff. 
2  Lev.  150.  The  words  in  the  present  case  must  be  taken  to  be 
false,  and  to  throw  a  stain  upon  the  plaintiffs  character. 

Judgment  for  the  plaintiff  ^^cr  totam  curiam. 


VILLERS   V.   MONSLEY. 

In  the  King's  Bench.     1768. 

Reported  2  Wilson,  403. 

The  allegation  of  malice. 

Action  upon  the  case  against  the  defendant  for  maliciously 
writing  and  publishing  a  libel  upon  the  plaintiff  in  the  words  fol- 
lowing, viz. : 

"  Old  Villers,  so  strong  of  brimstone  you  smell, 
As  if  not  long  since  you  had  got  out  of  hell, 
But  this  damnable  smell  I  no  longer  can  bear, 
Therefore  I  desire  you  would  come  no  more  here ; 
You  old  stinking,  old  nasty,  old  itchy  old  toad, 
If  you  come  any  more,  you  shall  pay  for  your  board, 
You  '11  therefore  take  this  as  a  warning  from  me. 
And  never  more  enter  the  doors,  while  they  belong  to  J.  P. 

"  Wilncoat,  December  4,  1767." 

The  defendant  pleaded  Not  guilty;  a  verdict  was  found  for  the 
plaintiff  and  sixpence  damages,  at  the  last  assizes  for  the  county 
of  Warwick.  And  now  it  was  moved  by  Serjeant  Burland  in 
arrest  of  judgment  that  this  was  not  such  a  libel  for  which  an 
action  would  lie ;  that  the  itch  is  a  distemper,  to  which  every 
family  is  liable  ;  to  have  it  is  no  crime,  nor  does  it  bring  any  dis- 
grace upon  a  man,  for  it  may  be  innocently  caught  or  taken  by 
infection;  the  small-pox  or  a  putrid  fever  are  much  worse  distem- 
pers ;  the  itch  is  not  so  detestable  or  so  contagious  as  either  of 
them,  for  it  is  not  communicated  by  the  air,  but  by  contact  or  put- 
ting on  a  glove,  or  the  clothes  of  one  who  has  the  itch ;  and  al- 
though it  be  an  infectious  distemper,  yet  it  implies  no  offence  in 
the  person  having  it,  and  therefore  no  action  will  lie  for  saying  or 
writing  that  a  man  has  got  the  itch.  It  is  not  like  saying  or  writ- 
ing that  a  man  has  got  the  leprosy,  or  is  a  leper,  for  which  an  ac- 
tion upon  the  case  will  lie,  because  a  leper  shall  be  removed  from 
the  society  of  men  by  the  writ  de  leproso  amovendo.  1  Ro.  Abr.  44 ; 
Cro.  Jac.  144;  Hob.  219,  although  it  be  a  natural  infirmity. 

Wilraot,  Lord  C.  J.  I  think  this  is  such  a  libel  for  which  an 
action  well  lies ;  we  must  take  it  to  have  been  proved  at  the  trial 
that  it  was  published  by  the  defendant  maliciously  ;  and  if  any 
man  deliberately  or  maliciously  publishes  anything  in  writing  con- 


318  CASES    ON   COMMON-LAW    PLEADING. 

cerning  another  which  renders  him  ridiculous,  or-  tends  to  hinder 
mankind  from  associating  or  having  intercourse  with  him,  an 
action  well  lies  against  such  publisher;  I  see  no  difference  between 
this  and  the  cases  of  the  leprosy  and  plague;  and  it  is  admitted 
that  an  action  lies  in  those  cases.  The  writ  de  leproso  amovendo  is 
not  taken  away,  although  the  distemper  is  almost  driven  away  by 
cleanliness,  or  new  invented  remedies ;  the  party  must  have  the 
distemper  to  such  a  degree  before  the  writ  sliall  be  granted,  which 
commands  the  sheriff  to  remove  him  without  delay  ad  locum  suli- 
tarium  ad  habitandum  ibidem  prout  moris  est,  ne  'per  communem 
conversationem  suam  hominibus  dampnum  vel  periculum  eveniat  quo- 
vismodo.  The  degree  of  leprosy  is  riot  material,  if  you  say  he  has 
the  leprosy  it  is  sufficient,  and  the  action  lies ;  the  reason  of  that 
case  applies  to  this ;  I  do  not  know  whether  the  itch  may  not  be 
communicated  by  the  air  without  contact,  it  is  said  to  be  occa- 
sioned by  animalcula  in  the  skin,  and  must  be  cured  by  outward 
application ;  nobody  will  eat,  drink,  or  have  any  intercourse  with  a 
person  who  has  the  itch  and  stinks  of  brimstone,  therefore  I  think 
this  libel  actionable,  and  that  judgment  must  be  for  the  plaintiff. 

Clive.  I  am  of  the  same  opinion,  that  this  is  a  very  malicious 
and  scandalous  libel. 

Bathurst,  J.  I  wish  this  matter  was  thoroughly  gone  into,  and 
more  solemnly  determined ;  however,  I  have  no  doubt  at  present 
but  that  the  writing  and  publishing  anything  which  renders  a  man 
ridiculous  is  actionable.^ 

Gould,  J.  Wliat  my  brother  Bathurst  has  said  is  very  material ; 
there  is  a  distinction  between  libels  and  words  ;  a  libel  is  punish- 
able both  criminally,  and  by  action,  when  speaking  the  words 
would  not  be  punishable  in  either  way ;  for  speaking  the  words 
rogue  and  rascal  of  any  one  an  action  will  not  lie ;  but  if  those 
words  were  written  and  published  of  any  one,  I  doubt  not  an  action 
would  lie ;  if  one  man  should  say  of  another  that  he  has  the  itch, 
without  more,  an  action  would  not  lie ;  but  if  he  should  write 
those  words  of  another,  and  publish  them  maliciously,  as  in  the 
present  case,  I  have  no  doubt  at  all  but  the  action  well  lies;  what 
is  the  reason  why  saying  a  man  has  the  leprosy  or  plague  is  action- 
able ;  it  is  because  the  having  of  either  cuts  a  man  off  from  soci- 
ety ;  so  the  writing  and  publishing  maliciously  that  a  man  has  the 
itch  and  stinks  of  brimstone  cuts  him  off  from  society.  I  think 
the  publishing  anything  of  a  man  that  renders  him  ridiculous  is 
a  libel  and  actionable,  and  in  the  present  case  am  of  opinion  for  the 
plaintiff.  Judgment  for  the  plaintiff  per  tot'  cur.  without  granting 
any  rule  to  show  cause. 

1  Part  of  Bathurst's  opinion  is  omitted. 


DECLARATIONS.  319 

MERCER   V.  SPARKS. 

In  the  King's  Bench.     1586. 

Reported  Owen,  51. 

Mercer  had  judgment  to  recover  against  Sparks  in  the  common 
pleas,  upon  an  action  of  the  case  for  words ;  and  Sparks  brought  a 
writ  of  error  in  the  king's  bench,  and  assigned  for  error  that  the 
plaintiff  did  not  express  in  the  decharation  that  the  defendant  spoke 
the  words  malitiose,  but  it  was  adjudged  that  it  was  no  error,  be- 
cause the  words  themselves  were  malicious  and  slanderous,  where- 
fore judgment  was  affirmed. 

WIRRAxM'S   CASE. 
Reported  Nov,  116. 

In  an  action  upon  the  case  for  words  (viz.),  If  ever  man  was  per- 
jured, Wirram  was.  And  issue  upon  not  guilty,  it  is  found  for  the 
plaintiff;  and  it  was  moved  in  arrest  of  judgment,  because  that  the 
plaintiff  hath  not  averred  that  any  man  was  perjured.  And  by 
Tanfield  only  in  court,  that  judgment  shall  be  stayed.  For  by  him 
it  hath  been  adjudged,  that  for  words,  "  Thou  art  as  very  a  thief 
as  any  in  Gloucester  Gaol,"  is  not  actionable  without  averment  that 
there  was.  a  thief  in  Gloucester  Gaol.  And  the  reason  is,  because 
theft  and  perjury  are  such  bad  things  in  themselves,  that  they  shall 
not  be  intended  without  an  averment,  etc. 

PRIDAM   V.   TUCKER. 

Reported  Nov,  133. 

An  action  upon  the  case  was  bruught  for  words.  Thou  art  an 
healer  of  felonies,  and  adjudged  maintainable,  because  in  Devon- 
shire where,  etc.,  healer  signifies  the  same  as  hider  or  concealer. 
And  the  proverb  there  is,  the  healer  is  as  bad  as  the  stealer. 

MALICIOUS  PROSECUTION. 

Malicious  Prosecution  on   a  Charge  of  Endeavoring   to  Evade 

Payment  of  Railroad  Fare  ;  Under  Massachusetts 

Practice. 

And  the  plaintiff  says  the  defendant,  maliciously  devising  to  injure 
the  plaintiff,  did  falsely  and  maliciously  and  without  any  reasonable  or 
probable  cause  procure  the  plaintiff  to  be  complained  against  by  their 


320  CASES    ON    COMMON-LAW    PLEADING. 

servants  and  agents  for  the  alleged  crime  of  evading  fare  due  to  tlie 
defendants  for  carrying  the  plaintiff  as  a  passenger  on  the  defendants' 
railroad. 

And  the  plaintiff  says  that  pursuant  to  a  warrant  issued  on  said  com- 
plaint he  was  arrested  and  imprisoned  for  the  space  of  one  day. 

And  the  defendants  did  falsely  and  maliciously  and  without  any  prob- 
able cause  prosecute  and  aid  in  prosecuting  said  complaint  against  the 
plaintiff,   until  afterwards  on  the  day  of  the  defendant  was 

after  trial  acquitted  by  said  court  and  by  a  judgment  thereof,  of  the 
premises  charged  against  him  by  said  complaint. 

By  reason  of  which  false  and  malicious  prosecution  and  imprison- 
ment the  plaintiff  lias  been  compelled  to  undergo  great  labor  and  trouble 
and  expense  and  pain  of  bod^'  and  mind,  has  suffered  greatl}'  in  liis 
credit,  business,  and  reputation,  and  has  expended  large  sums  of  mone}'' 
in  his  defence,  etc. 

CHARLES  U.  BELL. 


JOHN   E.   COLLINS   v.   EDWARD   T.  CAMPBELL. 

Supreme  Court,  Rhode  Island.     December  13,  1894. 
Reported  18  Rhode  Island,  738. 
Requisites  of  declarations  for  malicious  prosecution. 

Trespass  on  the  case  for  malicious  prosecution. 

Per  curiam.  We  think  the  demurrer  to  the  declaration  in  this 
case  should  be  sustained.  The  declaration  nowhere  alleges,  except 
in  an  argumentative  way,  that  the  malicious  proceeding  of  which 
the  plaintiff  complains  had  terminated  in  his  favor  before  the  com- 
mencement of  this  action.  In  Lauzon  v.  Charroux,  18  R.  L  467, 
which  is  relied  on  by  the  plaintiff's  counsel  in  support  of  the  dec- 
laration, it  was  held,  in  accordance  with  the  well-settled  rule  in 
such  cases,  that  in  order  to  entitle  the  plaintiff'  to  recover  in  an 
action  of  this  sort  "three  things  must  concur,  viz.  1,  the  motive  of 
the  party  instituting  or  prosecuting  the  suit  or  proceeding  must 
have  been  malicious ;  2,  the  suit  or  proceeding  complained  of  must 
have  been  instituted  without  probable  cause  ;  and  3,  the  suit  or 
proceeding  must  have  terminated  in  the  plaintiff's  favor  ;  "  and  also 
that  the  declaration  must  contain  allegations  covering  each  of  these 
points.  See  also  King  v.  Colvin,  11  R  I.  582  ;  Newton  v.  Weaver, 
13  R.  I.  617  ;  Gorton  v.  Be  Angelis,  6  Wend.  418 ;  Clarke  v.  Cleve- 
land, 6  Hill,  344. 

Demurrer  sustained. 

1  Oliver,  Precedents,  524. 


DECLARATIONS.  321 

NEGLIGENCE. 

For  Keeping  a  Ferocious  Stag;  under  Massachusetts  Practice. 

And  the  plaintiffs  sa}'  the  defendant  kept  a  certain  stag,  well  know- 
ing him  to  be  of  a  ferocious  disposition,  and  accustomed  to  attack  man- 
kind ;  that  the  defendant  negligently  suffered  said  stag  to  roam  without 
being  properly  guarded  or  confined  ;  that  the  said  stag,  while  so  negli- 
gently unguarded  and  unconfined,  ferocious!}-  attacked  the  plaintiff^s 
said  intestate,  and  wounded  and  maimed  him,  from  which  attack  and 
injuries  he  suffered  great  fear  and  agon}',  and  died  ;  tliat  by  reason  of 
said  attack  and  injuries  a  right  of  action  against  the  defendant  accrued 
to  said  intestate,  which  right  of  action  lias  survived  to  the  plaintiffs. 
Oliver,  Precedents. 

Reported  Dver,  29  a.  (195). 

Note,  by  all  the  judges ;  if  my  dog  pursue  and  chase  the  sheep 
of  a  stranger,  or  kill  them  without  my  incitement,  and  trespass  be 
brought  upon  this,  defendant  may  clearly  plead  not  guilty. 

BOULTON  V.  BANKS. 

In  the  King's  Bench.     1632. 
Reported  Cro.  Car.  254. 

Action  upon  the  case.  Whereas  the  defendant  kept  a  mastiff, 
sciens  that  he  was  ajfuetus  ad  mordendum  poreos,  and  that  the 
plaintiff  was  possessed  of  a  sow  great  with  pigs,  that  the  said  mas- 
tiff bit  the  said  sow  so  as  she  died  of  the  biting. 

After  verdict  upon  not  guilty  pleaded,  it  was  moved  in  arrest  of 
judgment,  first.  That  the  recital  of  the  bill  is  in  a  plea  of  trespass, 
and  the  declaration  is  in  a  plea  of  trespass  on  the  case.  Sed  non 
allocatur. 

The  second  exception.  That  to  declare  of  a  dog  ad  mordendum 
poreos  assuetus  is  not  good,  for  it  is  proper  for  a  dog  to  hunt  hogs 
out  of  the  ground,  and  his  biting  of  the  hogs  is  necessary,  and  not 
like  to  the  keeping  of  a  dog  which  usually  bites  sheep  or  other 
cattle. 

But  the  court,  ahscnte  Richardson,  conceived  the  action  well  lies, 
for  it  is  not  lawful  to  keep  dogs  to  bite  and  kill  swine.  Wherefore 
it  was  adjudged  for  the  plaintiff. 


21 


322  CASES    ON   COMMON-LAW   PLEADING. 

BUXENDIN   V.    SHARP. 

In  the  Common  Pleas.     1701. 

Reported  2  Salkeld,  662. 

The  plaintiff  declared  that  the  defendant  kept  a  bull  that  used  to 
run  at  men  ;  but  did  not  say,  sciens  or  scienter,  etc.  This  was  held 
naught  after  a  verdict ;  for  the  action  lies  not  unless  the  master 
knows  of  this  quality  ;  and  we  cannot  intend  it  was  proved  at  the 
trial,  for  the  plaintiff  need  not  prove  more  than  is  in  his  decla- 
ration.^ 

HANNAH   POPPLEWELL   v.  EDWIN   PIERCE. 

Supreme  Judicial  Court,  Massachusetts.     1852. 
Reported  10  Gushing,  509. 
Declaration  for  keeping  a  ferocious  animal. 

This  was  an  action  of  trespass  on  the  case.  The  declaration 
alleged  "  that  the  defendant,  heretofore,  to  wit,  on  the  26th  day  of 
January  last  past,  and  from  thence,  for  a  long  space  of  time,  to 
wit,  until  and  at  the  time  of  the  damage  and  injury  to  the  said 
plaintiff,  as  hereinafter  mentioned,  to  wit,  at  Lawrence  aforesaid, 
wrongfully  and  injuriously  did  keep  a  certain  horse  which  was, 
during  all  that  time,  used  and  accustomed  to  attack  and  bite  man- 
kind ;  he,  the  said  defendant,  during  all  that  time,  well  knowing 
that  the  said  horse  was  used  and  accustomed  to  attack  and  bite 
mankind,  to  wit,  at  Lawrence  aforesaid ;  and  which  said  horse, 
afterwards  and  whilst  the  said  defendant  so  kept  the  same  as  afore- 
said, to  wit,  on  the  28th  day  of  January  last  past,  at  Lawrence 
aforesaid,  did  attack  and  bite  the  said  plaintiff,  and  did  then  and 
there  greatly  lacerate,  hurt,  wound,  and  bruise  the  back  of  the  said 
plaintiff,  and  thereby  she  the  said  plaintiff  then  and  there  became 
sick,  sore,  lame,  and  disordered,  and  so  remained  and  continued  for 
a  long  space  of  time,  to  wit,  the  space  of  seven  weeks  then  next  fol- 
lowing, and  still  continues  sick,  sore,  lame,  and  disordered  thereby ; 
during  all  which  time  the  said  plaintiff  thereby  suffered  and  under- 
went, and  still  suffers  and  undergoes,  great  pain,  and  was  thereby 
then  and  there,  and  still  is,  hindered  and  prevented  from  performing 
and  transacting  her  lawful  affairs  and  business  by  her  to  be  performed 
and  transacted ;  and  also,  by  means  of  the  premises,  she,  the  said 

1  Another  report  of  the  same  case. — Baynterie  v.  Sharp.  In  the  Common  Pleas, 
Easter  Term,  1696.  Reported  Nelson's  lutroyche,  33.  Case  against  defendant  for 
keeping  a  mad  bull  which  wounded  the  plaintiff.  He  had  a  verdict,  but  the  judgment 
was  arrested  because  it  was  not  alleged  that  the  defendant  did  know  the  bull  to  be 
mad. 


DECLARATIONS.  323 

plaintiff,  was  thereby  and  still  is,  put  to  great  expense,  cost,  and 
charges,  in  the  whole  amounting  to  a  large  sum  of  money,  to  wit, 
seventy  dollars,  in  and  about  endeavoring  to  be  cured  of  the  said' 
wounds,  sickness,  lameness,  and  disorder,  so  occasioned  as  afore- 
said, and  hath  been  and  is,  by  means  of  the  premises,  otherwise 
greatly  injured  and  damnified,  to  wit,  at  Lawrence  aforesaid,  to  the 
damage,"  etc. 

The  case  was  tried  in  the  Court  of  Common  Pleas  before  Perkins, 
J.,  and  after  verdict  returned  for  the  plaintiff,  the  defendant  moved 
that  judgment  should  be  arrested  for  insufficiency  of  the  plaintifi"s 
declaration.  This  motion  was  overruled,  and  tlie  case  thereupon 
brought  into  this  court  on  exceptions. 

Metcalf,  J.     The  reason  assigned  by  the  defendant  for  his  mo- 
tion in  arrest  of  judgment  is,  that  the  declaration  does  not  allege 
"  that  the  horse  attacked  and  bit  the  plaintiff,  by  reason  of  the  d'e- 
fendant's  having  wrongfully  and  injuriously  kept  the  same ;  "  and, 
therefore,  for  aught  that  the  declaration  avers,  the  injury  received' 
by  the  plaintiff  may  have  been  by  her  own  fault  or  carelessness, 
and  not  by  the  fault  or  carelessness  of  the  defendant.     But  we  are' 
of  opinion  that  there  is  no  defect  in  the  declaration,  and  tliat  the 
objection  to  it  mistakes  the  ground  of  the  action.     This  question 
has  recently  been  decided  by  the  courts  in  England.     In  a  case  in 
the  Queen's  Bench,  May  v.  Burdett,  9  Adolph.  &  Ellis,  N.  E.  101, 
the  action  was  for  an  injury  received  from  an  animal  accustomed  to 
bite  mankind.     It  was  objected,  after  verdict  for  the  plaintiff;  that 
the  declaration  did  not  allege  negligence  or  default  in  the  defendant 
in  not  properly  keeping  or  securing  the  animal.    Lord  Den  man  said  : 
"A  great  many  cases  and  precedents  were  cited  upon  the  argument, 
and  the  conclusion  to  be  drawn  from  them  appears  to  us  to  be  that 
the  declaration  is  good  upon  the  face  of  it,  and  that  whoever  keeps 
an  animal  accustomed  to  attack  and  bite  mankind,  with  knowledge 
that  it  is  so  accustomed,  is  prima  facie  liable  in  an  action  on  the 
case  at  the  suit  of  any  person  attacked  and  injured  by  the  animal, 
without  any  averment  of  negligence  or  default  in  the  securing  and' 
taking  care  of  it.     The  gist  of  the  action  is  the  keeping  the  animal 
after  knowledge  of  its  mischievous  propensities.     The  precedents, 
both  ancient  and  modern,  with  scarcely  an  exception,  merely  state' 
the  ferocity  of  the  animal  and  the  knowledge  of  the  individual, 
without  any  allegation  of  negligence  or  want  of  care."    "  The  neuli- 
gence  is  in  keeping  such  animal  after  notice."     "  It  may  be  thai  if 
the  injury  was  solely  occasioned  by  the  wilfulness  of  the  plaintiff, 
after  warning,  that  may  be  a  ground  of  defence  by  plea  in  confes- 
sion and  avoidance."      This  decision  was  made  in  Trinity  Term, 
1846.     During  the  same  term  the  Court  of  Exchequer  made  the 
same  decision.   Jackson  v.  Smithson,  15  Mees.  &  Welsh.  563.    These 
two  decisions  were  fully  recognized  by  the  Court  of  Common  Pleas, 
ni  1848.     Card  v.  Case,  5  Man.  Grang.  &  Scott,  622.      In  this  last 
case,  which  was  for  an  injury  received  from  a  dog,  the  declaration, 


324  CASES    ON    COMMON-LAW    PLEADING. 

besides  alleging  what  is  contained  in  the  declaration  now  before 
us,  also  alleged  that  "  it  was  the  duty  of  the  defendant  to  use  due 
and  reasonable  care  and  precaution  in  and  about  the  keeping  and 
management  of  the  said  dog ;  yet  that  the  defendant,  not  regarding 
tlie  duty  of  him,  the  defendant,  in  that  behalf,  did  not  use  such  due 
and  reasonable  care,"  etc.  This  allegation  was  held  to  be  imma- 
terial. Coltman,  J.,  said :  "  Looking  at  the  frame  of  this  declara- 
tion, it  may  be  said  that  the  negligently  keeping  the  dog  was  the 
wrongful  act  charged  ;  but  that  is  overlooking  that  which  is  the 
gist  and  substance  of  the  action.  It  is  clear  from  the  case  of  May  v. 
Burdett,  where  the  matter  underwent  very  great  consideration,  that 
the  circumstance  of  the  defendant's  keeping  the  animal  negligently 
is  not  essential ;  but  that  the  gravamen  is  the  keeping  of  a  ferocious 
animal  knowing  its  propensities,  and  the  consequent  injury  to  the 
plaintiff."  And  Maule,  J.,  said  :  "  The  cases  of  May  v.  Burdett  and 
Jackson  v.  Smithson,  and  the  general  course  of  precedents  and  au- 
thorities referred  to  in  the  former  case,  prove  that  the  wrongful  act 
is  the  keeping  a  ferocious  dog,  knowing  its  savage  disposition ;  and 
that  an  action  of  this  sort  may  be  maintained  without  alleging  any 
negligence.  The  declaration  here  idly  and  superfluously  states  a 
duty  to  arise  on  the  defendant's  part,  to  use  due  and  reasonable 
care  and  precaution  in  and  about  the  keeping  and  management  of 
the  dog."  "  The  injury  to  the  plaintiff  would  be  the  same  whether 
the  defendant  was  guilty  of  negligence  or  not."  See  also  Kelly  v. 
Wade,  12  Irish  Law  Eeports,  424. 

The  defendant's  motion  is  overruled,  and  the  plaintiff  will  have 

Judgment  on  the  verdict. 

LUTHER  A.   MAY   v.   INHABITANTS    OF   PRINCETON.^ 

Supreme  Judicial  Court,  Massachusetts.     1846. 

Reported  11   Metcalf,  442. 

In  Massachusetts,  there  must  exist  in  a  valid  declaration  in  tort  for  negli- 
gence, some  soi't  of  allegation  of  the  plaintiff's  due  care. 

This  was  an  action  of  trespass  upon  the  case,  on  the  Eev.  Sts. 
c.  25,  s.  22,  to  recover  damages  alleged  to  have  been  occasioned  to 
the  plaintiff  by  an  encumbrance  in  a  highway  which  the  defendants 
were  by  law  obliged  to  repair.  The  declaration  averred  that  said 
highway,  on  the  14th  of  March,  1844,  and  for  the  space  of  twenty- 
four  hours  next  preceding,  was  defective,  unsafe,  and  out  of  re- 
pair, and  dangerous  to  travellers,  by  reason  of  being  blocked  up  and 
obstructed  by  snow;  of  which  defects  and  want  of  repair,  the  de- 
fenduits,  before  that  day,  had  reasonable  notice;  "and  the  plain- 
tiff, on  said  14th  of  March,  was  passing  and  travelling  in  and  upon 
said  highway,  with  his  team  employed  to  transport  the  mail  on 

1  C£.  Hilton  V.  Boston,  171  Mass.  478,  explaiuing  May  t;.  Princeton. 


DECLARATIONS.  325 

said  highway,  and  by  reason  of  the  defects  and  want  of  repair 
aforesaid,  one  of  his  horses  was  severely  corked,  receiving  a  deep 
wound  in  one  of  the  hind  legs,  and  suffered  great  injury ;  and  the 
plaintiff  was  thereliy  hindered  and  detained  for  a  long  space  of 
time,  and  was  put  to  great  cost  and  expense,  in  care  and  attention 
to  said  wound,  and  was  wholly  deprived  of  the  valuable  services  of 
said  horse,  for  a  long  space  of  time." 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Merrick,  J.,  the 
plaintiff  offered  evidence  tending  to  show  that  he  was  travelling  in 
a  proper  manner,  and  in  the  exercise  of  ordinary  care  and  diligence, 
at  the  time  of  the  alleged  accident.  The  defendants  objected  to 
the  admission  of  this  evidence,  on  the  ground  that  there  was  no 
allegation  of  these  facts  in  the  plaintiff's  declaration.  This  objec- 
tion was  overruled,  and  the  evidence  was  admitted.  The  jury 
found  a  verdict  for  the  plaintiff,  and  the  defendants  alleged  ex- 
ceptions to  the  admission  of  this  evidence. 

Shaw,  C.  J.  In  an  action  upon  the  case  against  a  town,  on  the 
statute,  the  defendants  objected  to  the  admission  of  evidence  tending 
to  show  that  the  plaintif!"  was  driving  with  due  care,  because  there 
was  no  specific  averment  to  that  effect  in  the  declaration.  Un- 
doubtedly the  rule  of  law  is  a  sound  one.,  that  the  2}robata  must  con- 
form to  the  allegata,  and  that  evidence  cannot  be  given  of  facts  not 
alleged.  But  the  mode  of  averment  is  regulated  by  judicial  practice, 
generally  too  well  settled  to  be  called  in  question.  Under  a  count  for 
money  had  and  received,  for  instance,  a  great  variety  of  facts  may  be 
given  in  evidence,  of  which  the  declaration  gives  no  intimation. 

In  the  present  case,  the  court  are  of  opinion,  that  the  declaration 
is  sufficient  to  admit  the  proof  offered.  To  maintain  tliis  action,  the 
plaintiff  is  bound  to  prove  affirmatively,  not  only  that  the  highway 
was  defective,  but  that  his  loss  was  caused  by  that  defect.  The 
per  quod  is  of  the  essence  of  the  charge,  and  must  be  strictly  proved. 
Though  the  highway  be  ever  so  defective,  if  the  plaintiff  has  suffered 
no  loss  by  reason  of  such  defect,  he  has  no  cause  of  action.  Lane 
V.  Crombie,  12  Pick.  177  ;  Smith  v.  Smith,  2  Pick.  621. 

When  a  traveller  on  the  highway  has  broken  down,  it  is  obvious 
that  this  may  be  attributed  to  either  one  of  two  causes  ;  viz.  his 
own  negligence,  or  the  defect  in  the  highway.  Proof,  which  nega- 
tives the  one,  tends  to  establish  the  other,  as  the  true  and  sole 
cause.  This  is  the  ground  of  the  decisions,  cited  in  the  argument, 
to  prove,  as  they  do  most  fully,  that  the  plaintiff  must  show 
that  he  was  driving  with  due  care.  It  is  to  negative  carelessness, 
and  prove  that  the  accident  was  occasioned  exclusively  by  the  de- 
fect in  the  highway.     The  plaintiff  therefore  may  give  affirmative 


326  CASES    ox   COMxMOX-LA^y   PLEADING. 

proof  that  he  was  driving  with  due  care,  because  it  establishes  his 
main  averment,  and  the  one  on  which  his  right  of  action  must  rest, 
namely,  that  his  loss  was  occasioned  by  reason  of  the  defect  in  the 
highway.  Even  if  this  were  an  irregularity  and  defect  in  the 
declaration,  we  think  it  would  be  within  the  authority  of  that  class 
of  decisions  in  which  it  has  been  held,  that  a  case,  if  defectively 
stated,  is  aided  by  verdict,  because  the  court  will  presume  that  the 
requisite  proof  to  support  the  case  was  given  at  the  trial.  Worster 
r.  Canal  Bridge,  16  Pick.  541.  If  no  sufficient  case  is  stated  in  the 
declaration,  the  defendant  has  his  remedy  in  a  demurrer,  or  motion 
in  arrest  of  judgment,  and  not  excepting  to  evidence. 

Exceptions  overruled. 

[^Extract  froin'] 

SMITH   V.   THE   EASTERN    RAILROAD. 

Supreme  Judicial  Court,  New  Hampshire.     1857. 
Reported  35  New  Hampshire,  356. 

"While  in  Xew  Hampshire  this  is  unnecessary. 

Coj^l/  of  Declaration. 

"  In  a  plea  of  trespass  on  the  case,  for  that  whereas  the  said  plain- 
tiff, at  Seabrook  aforesaid,  on  the  lltli  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eiglit  hundred  and  fifty  one,  was 
possessed  and  the  owner  of  a  certain  black  mare,  of  the  value  of 
one  hundred  and  fifty  dollars,  which  said  black  mare,  on  the  day 
and  year  last  aforesaid,  at  Seabrook  aforesaid,  was  on  the  railroad 
track  of  the  said  defendants  leading  from  Boston  to  the  State  of 
Maine,  passing  through  Seabrook  aforesaid ;  and  whereas,  then  and 
there,  on  the  same  day,  at  Seabrook  aforesaid,  the  said  defendants 
were  possessed  of  certain  cars,  and  also  of  a  certain  locomotive 
engine,  propelled  by  steam,  drawing  the  same  cars  on  and  over  said 
railroad  track ;  and  the  said  defendants,  then  and  there,  by  an 
engineer,  then  a  servant  of  the  said  defendants,  had  the  care, 
government,  and  direction  of  the  said  cars  and  locomotive  engine: 
yet  the  said  defendants,  not  minding  or  regarding  their  duty  in 
this  behalf,  then  and  there,  by  their  said  engineer,  then  a  servant 
of  the  said  defendants,  so  negligently  and  unskilfully  managed  and 
behaved  themselves  in  this  behalf,  and  so  ignorantly,  carelessly,  and 
negligently  managed  and  guided  the  said  cars,  and  the  locomotive 
engine  propelled  by  steam,  drawing  the  same  as  aforesaid,  that  the 
said  cars,  for  want  of  good  and  sufficient  care  and  management 


DECLARATIONS.  327 

thereof,  and  of  the  locomotive  engine,  propelled  by  steam,  drawing 
the  same,  then  and  there  struck  against  the  said  black  mare  of  the 
said  plaintiff,  being  upon  the  track  as  aforesaid,  with  such  force  and 
violence  that  the  said  black  mare  was  bruised,  wounded,  cut  in 
pieces,  and  totally  destroyed." 

Per  Fowler,  J.  .  .  .  We  have  thus  far  proceeded  on  the  assump- 
tion that  there  might  have  been  some  imperfection  or  defect  in  the 
declaration  under  consideration,  that  would  have  been  fatal  on 
demurrer.  A  careful  examination  of  the  question,  however,  satisfies 
us  that  no  such  defect  existed  upon  its  face.  It  charged  the  de- 
fendants with  carelessly  and  negligently  killing  the  plaintiff's  horse 
upon  their  track  by  means  of  their  train.  Upon  principle  and 
weight  of  authority  we  think  it  quite  clear  that  a  good  cause  of 
action  was  thus  set  forth.  It  was  not  necessary  for  the  plaintiff  to 
set  forth  how  the  horse  came  upon  the  track,  or  that  it  was  there 
without  his  fault.  If  it  were  there  wrongfully,  the  defendants  were 
responsible,  if  they  killed  it,  as  expressly  charged,  through  careless- 
ness and  negligence.  If  it  were  there  rightfully,  the  fact  of  its 
being  killed  was  coni'petent  prima  facie  evidence  of  the  negligence 
of  the  defendants  in  managing  their  train.  If  it  were  there  through 
the  fault  of  the  defendants,  they  were  responsible  for  the  damages, 
under  whatever  circumstances  they  killed  it.  The  declaration  was 
therefore  sufficient  of  itself,  although  it  might  have  been  more  per- 
fect. If  any  defect  existed,  it  was  latent.  It  was  only  when  the 
evidence  showed  that  the  horse  came  upon  the  track  through  the 
negligence  of  the  defendants  in  not  maintaining  their  fence,  so  that 
it  became  unnecessary  to  prove  the  negligence  expressly  charged  in 
the  management  of  their  train,  that  any  objection  could  have  been 
taken  to  the  declaration.  Had  the  defendants  then  insisted  upon  a 
variance  between  the  declaration  and  the  proof,  as  before  suggested, 
the  plaintiff  might  have  been  obliged  to  amend,  or  have  been  sub- 
jected to  a  nonsuit.  But  it  is  not  now  necessary  to  decide  the 
question  or  further  discuss  the  subject.  Had  the  objection  been 
taken  and  insisted  upon,  the  plaintiff,  upon  the  facts  in  the  case, 
would  undoubtedly  have  proposed  and  been  permitted  to  amend, 
probably  without  terms,  by  inserting  an  allegation  that  the  horse 
was  upon  the  track  through  the  fault  of  the  defendants  in  not 
maintaining  their  fence,  so  that  no  particular  inconvenience  to  the 
plaintiff  or  advantage  to  the  defendants  could  have  resulted  there- 
from. As  it  was  not  insisted  upon,  as  the  declaration  was  sufficient 
of  itself,  and  clearly  good  after  verdict,  notwithstanding  the  variance 
in  the  proof,  there  must  be  Judgment  on  the  verdict. 


328  CASES   ON   COMMON-LAW    PLEADING. 

BOWLUS   ET  AL.   v.  BRIER  ET  AL. 

Supreme  Court  of  Indiana.     1882. 

Reported  87  Indiana,  391. 

Black,  C.  This  was  an  action  commenced  before  a  justice  of 
the  peace  by  the  appellees  against  the  appellants,  the  complaint 
alleging,  in  substance,  that  the  defendants  hired  of  the  plaintiffs, 
who  were  keepers  of  a  livery  stable,  a  team  of  two  horses  and  a 
buggy,  to  be  driven  by  the  defendants  from  the  town  of  Williams- 
port  to  the  city  of  Crawfordsville,  a  distance  of  twenty-eight  miles ; 
that  pursuant  to  said  hiring  the  plaintiffs  intrusted  said  team  and 
buggy  to  the  defendants,  for  said  use ;  that  said  horses,  while  so  in 
possession  of  defendants,  were  by  them,  or  by  others,  with  their  per- 
mission, so  unlawfully  neglected  and  abusively  driven  and  cared  for 
that  they  were  greatly  injured,  and  rendered  wholly  unfit  for  use  in 
the  business  of  the  plaintiffs  for  the  space  of  three  weeks,  to  the 
damage  of  the  plaintiffs  $50  ;  and  that  the  market  value  of  said 
team  was  by  said  abuse  and  negligence  greatly  impaired,  to  the 
damage  of  plaintiffs  $100 ;  and  judgment  was  demanded  for 
$150.  .  .  . 

The  objection  urged  against  the  complaint  is  that  it  does  not 
allege  the  plaintiffs  were  without  fault,  and  that  the  horses  were 
able  to  perform  the  journey. 

An  averment  of  want  of  contributory  fault  on  the  part  of  the 
plaintiff  is  necessary  only  where  the  action  is  for  negligence,  with- 
out any  direct,  positive,  affirmative  fault  on  the  part  of  the  defend- 
ant. Roll  V.  City  of  Indianapolis,  52  Ind.  547  ;  Coon  v.  Vaughn,  64 
Ind.  89.  The  complaint  before  us  contained  such  a  charge  of  posi- 
tively improper  conduct  on  the  part  of  the  defendants  as  to  render 
unnecessary  the  averment  suggested  by  appellants.  .  .  .  We  find  no 
available  error  in  the  record.^ 

Pel'  curiam.  It  is  ordered,  upon  the  foregoing  opinion,  that  the 
judgment  be  affirmed,  at  the  costs  of  the  appellants. 

1  Part  of  the  opinion,  not  relating  to  the  sufficiency  of  the  complaint,  is  omitted. 


DECLAKATIONS.  329 


THE    EVANSVILLE    AND    CRAWFORDSVILLE    RAILROAD 
COMPANY   V.   HI  ATT. 

Supreme  Court  of  Indiana.     1861. 

Reported  17  Indiana,  102. 

"While  in  Indiana  an  allegation  of  due  care  is  ordinarily  vital. 

Appeal  from  the  Sullivan  Circuit  Court. 

Perkins,  J.  Hiatt  sued  the  Evansville  and  Cravvfordsville  Eail- 
road  Company,  to  recover  damages  occasioned  by  an  injury  he  re- 
ceived from  the  cars  on  said  road,  and  recovered  a  judgment  for 
SI 200.  The  company  has  appealed  to  this  court.  The  complaint, 
in  the  case,  does  not  aver  that  the  plaintiff  was  not  in  fault,  but  it 
alleges  that  he,  for  the  purpose  of  rescuing  his  father,  jumped  upon 
the  railroad  track,  with  full  knowledge  of  the  nearness  and  speed 
of  the  train,  his  father,  old  and  infirm,  having  also  entered  upon, 
and  started  up  the  track,  immediately  in  front  of  the  approaching 
train.  This  is  plain,  from  the  averment  that  he  was  met  by  the 
train  almost  immediately  after  he  entered  upon  the  track.  [The 
court  then  reviewed  the  evidence  at  length.] 

The  sufficiency  of  the  complaint  in  this  case  has  been  discussed. 
In  this  class  of  suits,  the  plaintiff  must,  as  a  general  proposition, 
prove  that  the  proximate,  the  immediate,  cause  of  the  injury  sued 
for  was  the  wrongful  act  of  the  defendant,  to  which  injury  his  own 
wrongful  act  did  not  immediately  contribute ;  at  least,  the  facts 
must  develop  this.  Hence  the  question  of  negligence,  on  the  part 
of  the  plaintiff,  arises  under  the  general  denial.  It  is  embraced  in 
the  issue  made  by  such  denial.  1  Hilliard  on  Torts,  p.  1.33. 
Hence,  the  further  rule  as  to  the  complaint,  that  it  must  show  bv 
averments  that  the  plaintiff  was  not  in  fault.  The  complaint  in 
this  case,  as  will  appear  from  what  we  have  said  upon  the  facts, 
does  not  sufficiently  excuse  the  plaintiff.  The  President,  etc.,  v. 
Dusouchett,  2  Ind.  586  ;  The  Wayne,  etc..  Turnpike  Co.  v.  Berry, 
5  Ind.  286.  Our  statute  makes  railroad  companies  liable  for  kill- 
ing stock,  but  not  men,  without  regard  to  negligence,  where  the 
road  is  not  fenced.^ 

Per  curiam.  The  judgment  is  reversed,  with  costs,  for  want  of 
a  sufficient  complaint.  Cause  remanded  for  further  proceedings, 
with  leave  to  amend,  etc. 

John  P.  Usher,  for  the  appellant. 

J.  E.  McDonald  and  A.  L.  Roache,  for  the  appeUee. 

^  Part  of  the  opinion,  not  relating  to  the  sufficiency  of  the  complaint,  is  omitted. 


330  CASES    ON    COMMON-LAW   PLEADING. 

To  show  a  good  cause  of  action  in  case,  if  the  injury  be 
to  the  plaintiff's  person  or  j)roperty,  the  declaration  should 
contain 

(a)  A  statement  of  the  wrongful  act  on  the  part  of 

the  defendant. 
If  the  injury  be  to  the  plaintiff's  property,  the  declaration 
should  further  contain 

(b)  A  statement  of  such  facts  as  will  show  that   the 

plaintiff  has  some  interest  in  the  property 
which  may  be  the  subject  of  injury.  The  word 
property  here  is  used  in  the  broad  sense  as  in- 
cluding both  chattels,  real  estate,  choses  in  ac- 
tion, and  anything  which  is  of  value,  or  from 
which  plaintiff  rightfully  enjoys  a  benefit. 
[(c)  Damages,] 
Adapted  from  McKelvey,  Common-Law  Pleading,  62. 

Presented  Tidd's  Practice,  Vol.  L,  page  390. 

"In  actions  for  wrongs,  the  declaration  should  state  the  injury 
complained  of;  and  in  actions  on  the  case  it  should  set  forth,  by 
way  of  inducement,  the  circumstances  under  which  the  injury  was 
committed,  and  the  consequential  damages  resulting  therefrom  to 
the  plaintiff.  The  injury  complained  of  is  immediate  or  conse- 
quential. Where  it  is  immediate,  and  included  in  the  act  com- 
plained of,  there  it  is  sufficient  to  state  that  act  alone  in  the 
declaration,  as  in  trespass  vi  et  .armis.  The  charge  in  such  case 
ought  to  be  direct  and  positive,  and  not  merely  by  way  of  recital. 
Therefore  a  declaration  by  bill,  stating  that  whereas,  or  wherefore 
the  defendant  did  the  act  complained  of,  is  bad  on  special  demur- 
rer ;  and  was  formerly  holden  to  be  so,  in  arrest  of  judgment ;  but 
now  it  may  be  amended  at  any  time  before  or  after  judgment,  by  a 
right  bill ;  the  time  of  filing  whereof  the  court  will  not  inquire  into. 
And  by  original,  the  count-part  being  helped  by  the  recital  of  the 
writ,  this  fault  is  not  fatal,  even  on  a  special  demurrer. 

"  Where  the  damages  in  trespass  are  such  as  naturally  arise  from 
the  act  complained  of,  or  cannot  with  decency  be  stated,  they  may 
be  given  in  evidence  under  the  alia  enormia ;  but  otherwise  they 
must  be  stated  in  the  declaration.  And  many  things  may  be  laid 
in  aggravation  of  damages,  for  which  alone  trespass  would  not  lie ; 
as  trespass  may  be  brought  for  entering  the  plaintiff's  house,  and 


DECLAEATIONS.  331 

beating  his  wife,  child,  or  servant :  but  in  such  case,  the  plaintiff 
cannot  recover  damages  for  losing  the  service  of  his  child  or  ser- 
vant, because  he  may  have  a  proper  action  for  that  purpose,  nor 
can  it  be  given  in  evidence ;  but  the  beating  may  be  given  in  evi- 
dence, to  aggravate  the  damages  :  for  now,  though  it  has  been  holden 
otherwise  formerly,  if  the  principal  matter  will  bear  an  action,  the 
plaintiff  may  give  anything  in  evidence  in  aggravation  of  damages, 
that  will  not  of  itself  bear  an  action,  for  if  it  will,  it  must  be  shown  ; 
as  in  trespass  quare  clausum  /regit,  the  plaintiff  would  not  be  per- 
mitted to  give  evidence  of  the  defendant's  taking  away  a  horse, 
etc.,  but  in  trespass  quare  clausum  et  domum  /regit,  he  may  give 
in  evidence  that  the  defendant  came  into  his  house,  and  defiled  his 
daughter. 

"Consequential  injuries,  we  have  seen,  arise  from  malfeasance, 
nonfeasance,  or  misfeasance.  In  actions  for  malfeasance,  three 
things  are  to  be  attended  to  in  the  declaration :  first,  the  motive,  if 
any,  which  urged  the  defendant  to  the  commission  of  the  act  com- 
plained of ;  secondly,  the  end  which  he  had  in  view  ;  and  thirdly, 
the  means  which  he  took  of  accomplishing  it.  Thus,  in  an  action 
for  defamation,  the  motive  is  malice,  the  end  proposed  is  to  injure 
the  plaintiff"  in  his  good  name,  etc.,  and  the  means  are  the  words 
spoken  by  the  defendant  for  that  purpose.  In  actions  for  mal- 
feasance, the  motive  is  either  malice,  which,  generally  speaking, 
leads  to  the  commission  of  injuries  to  the  person,  or  the  gratifica- 
tion of  self-interest  at  the  expense  of  another.  And  accordingly, 
the  end  which  the  defendant  has  in  view  is  either  to  injure  the 
plaintiff,  or  to  benefit  himself.  And  the  means  he  takes  of  ac- 
complishing his  intention  are  either  direct  and  open,  or  under  color 
of  legal  process,  or  by  deceit,  which  is  either  where  there  is  a  privity 
between  the  parties,  as  upon  a  sale  of  goods,  etc.,  or  where  there  is  no 
such  privity.  In  actions  for  nonfeasance  or  misfeasance,  the  injury 
frequently  proceeds  from  a  mere  neglect,  without  any  bad  motive 
imputable  to  the  defendant. 

"  The  circumstances  attending  the  several  injuries  before  men- 
tioned, and  which  sliould  be  stated  by  way  of  inducement,  are 
various,  according  to  the  nature  and  grounds  of  the  action.  In 
general,  they  disclose  some  right  or  title  in  the  plaintiff",  or  some 
duty  to  be  performed  by  the  defendant.  In  actions  for  wrongs 
affecting  the  absolute  rights  of  persons,  the  right  to  personal 
security,  being  implied,  need  not  be  stated  in  the  declaration  ;  as 
in  actions  of  assault  and  battery,  etc.  But  where  the  wrongs  com- 
plained of  affect  the  relative  rights  of  persons,  the  relation  sliould 
be  stated,  in  respect  of  which  the  plaintiff  is  injured ;  as  in  actions 


332  CASES    ON   COMMON-LAW    PLEADING. 

for  criminal  conversation,  etc.  And  where  an  action  is  brought  for 
defamation,  it  is  usual  to  state  in  the  declaration,  by  way  of  induce- 
ment, that  the  plaintiff  is  a  person  of  good  name,  etc.,  and  has  not 
been  guilty  of  the  crime  imputed  to  him. 

"  In  actions  for  wrongs  to  real  or  personal  property,  the  plaintiff's 
right  or  title  must  be  set  forth  in  the  declaration,  either  generally 
or  specially.  Where  a  special  title  is  necessary  to  maintain  the 
action,  it  must  be  stated  with  certainty.  If  a  man  allege  in  himself 
a  title  to  the  inheritance  or  freehold  of  lands  in  possession,  he  ought 
regularly  to  say  that  he  was  seised ;  or  if  he  allege  possession  of  a 
term  for  years,  or  other  chattel-real,  that  he  was  possessed.  So  if 
he  allege  seisin  of  things  manurable,  as  of  lands,  tenements,  rents, 
etc.,  he  should  say  that  he  was  seised  in  his  demesne  as  of  fee  ;  if 
of  things  not  manurable,  as  of  an  advowson,  that  be  was  seised  as 
of  fee  and  right,  omitting  in  his  demesne.  And  it  is  a  rule,  that 
where  title  is  necessary  to  be  shown,  if  the  plaintiff  derive  a  par- 
ticular estate  from  another,  he  ought  to  show  that  the  other  had 
such  an  interest  as  would  enable  him  to  make  the  estate.  The  rea- 
son why  the  commencement  of  particular  estates  must  be  shown 
in  pleading  is,  because  they  are  created  by  agreement  out  of  the 
primitive  estate;  and  the  court  must  judge  whether  the  primitive 
estate  and  agreement  be  sufficient  to  produce  the  particular  estate 
claimed ;  and  this  is  a  fundamental  rule,  which  ought  not  to  be 
broken  upon  fancied  inconveniences.  It  is  also  a  rule  that  if  the 
plaintiff  claim  under  one  who  has  only  a  particular  estate,  as  for 
life,  he  must  aver  the  continuance  of  that  estate. 

"  In  setting  forth  a  title  to  incorporeal  hereditaments,  the  plain- 
tiff must  show  that  it  was  by  grant,  custom,  or  prescription.  A 
grant  ought  regularly  to  be  pleaded,  with  a  profert  in  curia  of  the 
deed  containing  it ;  but  where  the  deed  is  lost  or  destroyed,  by 
accident  or  length  of  time,  it  may  be  pleaded  without  a  profert. 
Custom  is  properly  a  local  usage,  and  not  annexed  to  any  particular 
person  ;  such  as  a  custom  within  a  manor,  that  lands  shall  descend 
to  the  youngest  son,  or  that  copyholders  shall  have  a  right  of  com- 
mon, etc.  Prescription  is  altogether  a  personal  usage  ;  and  is  either 
in  a  que  estate,  or  in  a  man  and  his  ancestors  ;  the  former  is  where 
the  right  claimed  is  annexed  to,  and  passes  with  the  land,  in  which 
case  the  plaintiff  states  that  he,  and  all  those  whose  estate  he  hath 
therein,  have  immemorially  had  such  right ;  the  latter  is  where  the 
right  is  not  annexed  to  the  land,  but  lies  in  grant,  in  which  case 
the  plaintiff  must  aver,  that  he  and  his  ancestors  have  immemorially 
enjoyed  it. 

"  But  in  personal  actions,  it  is  seldom  necessary  to  state  a  title 


DECLARATIONS.  333 

specially  in  the  declarations  ;  for  damages  are  the  gist  of  these 
actions,  and  the  title  only  matter  of  inducement.  And  it  is  a  gen- 
eral rule  therein,  that  possession  is  sufficient  evidence  of  title  against 
a  wrong-doer  ;  as  in  trespass  quare  clausum  f regit,  etc.  So  in  an 
action  on  the  case  for  a  nuisance  to  the  plaintiff's  house,  etc.,  it  is 
sufficient  for  the  plaintiff  in  his  declaration  to  state  generally  that 
he  was  lawfully  possessed  of  the  house,  or  other  property  affected 
by  the  injury  complained  of :  and  if  the  declaration  be  for  stopping 
up  lights,  it  goes  on  to  state,  that  by  reason  of  his  possession  he 
had,  and  of  right  ought  to  have,  the  lights  that  have  been  ob- 
structed. In  like  manner,  the  plaintiff  in  an  action  for  diverting 
a  water-course  from  his  mill  need  only  state,  that  he  was  pos- 
sessed of  the  mill,  and  that  the  water  had  been  accustomed  and 
of  right  ought  to  flow  thereto,  without  stating  that  it  was  an 
ancient  mill,  or  disclosing  the  grounds  upon  which  the  right  to 
the  water  is  claimed. 

"  In  an  action  upon  the  case  for  the  disturbance  of  rights  of  com- 
mon, etc.,  there  is  this  distinction  :  where  the  action  is  brought 
against  a  wrong-doer,  it  is  sufficient  for  the  plaintiff  to  state  in  his 
declaration,  that  he  was  possessed  of  a  house  or  lands,  etc.,  and  by 
reason  of  his  possession  thereof,  was  entitled  to  the  right,  in  the 
exercise  of  which  he  has  been  disturbed ;  but  where  the  plaintiff 
would  lay  any  charge  or  servitude  on  the  land  or  property  of 
another,  he  must  set  forth  his  title  specially  in  the  declaration. 
Thus,  in  an  action  on  the  case  against  a  stranger  and  wrong-doer, 
for  disturbing  the  plaintiff  in  the  use  of  a  seat  in  a  church,  no  title 
or  consideration  is  necessary  to  be  shown  ;  but  where  the  plaintiff 
claims  against  the  ordinary  himself,  who  hath  i:)r%mci  facie,  the 
disposal  of  all  the  seats  in  the  church,  he  ought  to  show  some 
cause  or  consideration,  as  building,  repairing,  etc.  And  though, 
in  the  other  case,  the  plaintiff  is  allowed  to  declare  upon  his  pos- 
session, yet  he  must  prove  his  title  at  the  trial ;  and  possession 
for  above  sixty  years  of  a  pew  in  a  church  is  not  a  sufficient  title 
to  maintain  an  action  on  the  case,  for  disturbance  in  the  enjoyment 
of  it ;  but  the  plaintiff  must  prove  a  prescriptive  right,  or  a  faculty, 
and  should  claim  it  in  his  declaration,  as  appurtenant  to  a  messuage 
in  the  parish.  In  declaring  for  wrongs  to  personal  property,  the 
plaintiff  must  state  his  right ;  as  in  trespass  for  taking  goods,  that 
they  were  his  own  goods ;  or  in  trover,  that  he  was  possessed  of 
them,  etc. 

"  In  actions  upon  the  case  for  a  breach  of  duty,  the  declaration 
should  state  the  nature  of  the  duty  to  be  performed  by  the  defend- 
ant, which  is  founded  on  the  general  obligation  of  law,  the  defend- 


334  CASES   ON    COMMON-LAW   PLEADING. 

ant's  particular  situation,  or  some  contract  or  agreement  between 
the  parties.  Where  the  defendant  is  liable  of  common  right,  as  to 
repair  a  wall  for  preventing  damage  to  his  neiglibor,  it  is  not  neces- 
sary for  the  plaintiff  to  show  a  title  in  his  declaration,  or  the  special 
ground  of  the  defendant's  liability  ;  but  where  a  charge  is  imposed 
on  another,  against  common  right,  as  owner  of  the  soil  or  tertenant, 
it  was  formerly  holden,  that  a  title  must  be  shown,  as  in  an  action 
for  not  repairing  fences,  etc.  So  where  a  special  action  on  the  case 
was  brought  against  the  defendant,  for  not  keeping  a  bull  and  boar, 
the  declaration  was  holden  bad  upon  demurrer,  for  not  setting  forth 
that  the  defendant  was  obliged  to  keep  them,  either  by  custom, 
prescription,  or  otherwise.  But  in  a  late  case,  where  an  action  was 
brought  for  not  repairing  a  private  road,  leading  through  the  defend- 
ant's close,  it  was  held  to  be  sufficient  to  allege,  that  the  defendant, 
as  occupier  of  the  close,  was  bound  to  repair  it ;  and  per  Buller, 
Justice,  the  distinction  is,  between  cases  where  the  plaintiff  lays  a 
charge  upon  the  right  of  the  defendant,  and  w^here  the  defendant 
himself  prescribes  in  right  of  his  own  estate.  In  the  former  case, 
the  plaintiff  is  presumed  to  be  ignorant  of  the  defendant's  estate, 
and  cannot  therefore  plead  it ;  but  in  the  latter,  the  defendant, 
knowing  his  own  estate,  in  right  of  wdiich  he  claims  a  privilege, 
must  set  it  forth.  In  actions  against  sheriffs  or  other  officers,  or 
asrainst  carriers,  etc.,  for  misfeasance,  the  declaration  must  state  the 
nature  of  the  plaintiff's  right,  and  the  ground  of  the  defendant's  duty. 
"  In  actions  upon  the  case  for  consequential  injuries,  the  damages 
which  the  plaintiff  has  sustained,  being  the  gist  of  the  complaint, 
must  be  stated  in  the  declaration ;  which  damages  must  appear 
to  depend  on  the  injury  complained  of,  and  not  be  too  remote,  or 
happen  from  the  intervention  of  another  cause ;  and  they  are  either 
general  or  special.  General  damages  are  such  as  naturally  arise 
out  of,  or  are  connected  with  the  injury  complained  of;  and  in 
actions  for  malfeasance,  they  in  general  correspond  with  the  end 
or  design  which  the  defendant  had  in  view,  and  which  has  been 
previously  stated  in  the  declaration ;  as  in  an  action  for  defama- 
tion the  declaration  states,  that  the  defendant  intending  to  injure 
the  plaintiff  in  his  good  name,  etc.,  spoke  the  words  complained  of ; 
whereby  the  plaintiff  was  injured  in  his  good  name,  etc.  Special 
damages  are  either  such  as  are  superadded  to  general  damages,  aris- 
ing from  an  act  injurious  in  itself;  or  such  as  arise  from  an  act  in- 
different in  itself,  but  injurious  in  its  consequences ;  and  in  either 
case,  they  must  be  specially  laid  in  the  declaration,  or  the  plaintiff 
will  not  be  allowed  to  give  them  in  evidence  at  the  trial.  Thus,  in 
an  action  for  defamation,  though  the  words  be  in  themselves  action- 


DECLARATIONS.  335 

able,  yet  the  plaintiff  is  not  at  liberty  to  give  evidence  of  any  loss 
or  injury  he  has  sustained  by  the  speaking  of  them,  unless  it  be 
specially  laid  in  the  declaration.  If  an  action  be  brought  for  words 
tliat  are  not  in  themselves  actionable,  and  the  plaintiff  do  not  prove 
the  special  damage  laid  in  the  declaration,  he  must  be  nonsuited, 
because  the  special  damage  is  the  gist  of  the  action ;  but  where  the 
words  are  of  themselves  actionable  if  the  words  be  proved,  the  jury 
must  find  for  the  plaintiff,  though  no  special  damage  be  proved. 

"  The  declaration,  in  general,  concludes,  to  the  damage  of  the  plain- 
tiff of  a  certain  sum  of  money,  and  therefore  he  brings  his  suit,  etc. 
But  in  a  penal  action,  brought  by  a  common  informer,  w^here  the 
plaintiff's  right  to  the  penalty  accrues  upon  bringing  the  action,  it 
is  not  necessary  to  conclude  in  this  way,  as  the  plaintiff  cannot 
have  sustained  any  damage  by  a  previous  detention  of  the  penalty. 
In  actions  against  attorneys  and  officers  of  the  court,  it  is  usual, 
though  not  necessary,  for  the  plaintiff,  instead  of  bringing  suit,  to 
pray  relief,  etc.  And  where  the  action  is  brought  by  bill  against  a 
member  of  the  House  of  Commons,  the  bill  concludes  with  a  prayer 
of  process  to  be  made  to  the  plaintiff,  according  to  the  statute,  etc.  It 
was  anciently  necessary  to  find  pledges  to  prosecute,  and  add  their 
names  to  the  declaration  by  bill ;  but  they  are  now  holden  to  be 
mere  matter  of  form,  and  may  be  found  at  any  time  before  judgment. 

"  The  qualities  of  a  declaration  are,  first,  that  it  correspond  with 
the  process ;  secondly,  that  it  contain  all  the  circumstances  neces- 
sary to  maintain  the  action,  and  no  more ;  thirdly,  that  these  cir- 
cumstances be  set  forth  with  certainty  and  truth." 

STATUTES   OF   JEOFAILS  AND   AMENDMENTS. 

"  The  statutes  of  jeofails  and  amendments  are  so  called  from  fay 
faille,  an  expression  used  by  the  pleader  of  former  days  when  he 
perceived  a  slip  in  his  proceeding.  The  statutes  of  jeofails  and 
amendments  are  14  Edw.  III.  c.  6  ;  9  Hen.  V.  c.  4  ;  4  Hen.  YI.  c.  3  ; 
8  Hen.  VI.  c.  12,  15;  32  Hen.  VIII.  c.  30;  18  Eliz.  c.  14;  21  Jac. 
I.  c.  13  ;  16  and  17  Car.  II.  c.  8  ;  4  and  5  Ann.  c.  16  ;  9  Ann.  c.  20  ; 
5  Geo.  I.  c.  13."     Stephen,  Pleading,  App.  XXX.  Tyler's  ed. 

JOHN   THOMAS   v.  WILLOUGHBY. 

Michaelmas  Term,  18  Jac.  1.     In  B.  R. 

Reported  Croke's  James,  587. 

Assumpsit  by  John  Thomas,  executor  of  Nicholas  Joyce,  against 
the  defendant,  for  that  he  promised  to  the  said  testator,  in  consider- 


3u6  CASES   ON    COMMON-LAW    PLEADING. 

ation  that  he  the  said  iSTicholas  the  testator  would  deliver  to  him 
on  request  forty  pounds,  to  repay  it  on  such  a  day. 

The  declaration  was,  "  quod  idem  Nicholaus  dicit  in  facto,  quod 
ipse  idem  Nicholaus  delivered  to  him  the  forty  pounds,  and  that  the 
defendant  had  not  paid  it  to  him  in  his  life,  nor  to  the  plaintiff,  his 
executor,  after  his  death,  etc." 

Upon  noil  assumpsit  pleaded,  and  found  for  the  plaintiff,  it  was 
moved  in  arrest  of  judgment  that  this  declaration  was  ill  and  in- 
sensible, "  quod  idem  Nicholaus  dicit  in  facto"  because  he  is  a  dead 
person.  And  although  it  was  moved,  that  it  might  be  amended, 
for  it  was  said  to  be  the  default  of  the  clerk  only,  who  put  in 
prcedictiLs  Nicholaus,  where  it  should  have  been  "  Johannes." 

Yet  it  was  resolved,  it  could  not  be  amended  ;  for  it  is  the  very 
substance  of  the  declaration,  and  no  precedent  matter  to  induce 
thereto.  And  it  is  not  like  where  the  issue  is  betwixt  John  and 
William,  and  the  issue  is  joined,  quod  idem  Jolt,  hoc  petit  quod 
inquiriat,  etc.,  et  prcedictus  Johan.  similiter,  "where  it  should  be," 
proedictus  Willielmus  similiter ;  for  it  is  there  merely  the  default  of 
the  clerk,  when  he  had  a  precedent  record  of  the  bar  and  replica- 
tion, to  guide  him  how  the  defendant  should  join  issue,^  but  it  is 
not  so  here,  but  merely  the  default  of  the  plaintiff  in  his  declara- 
tion :  Wherefore  it  was  adjudged  for  the  defendant,  querens  nihil 
capiat  per  tillam. 

STATEMENTS   OF   CLAIM   IN   TOET. 
Present-Dat  Procedure  in  England. 

A  word  as  to  the  forms  of  declarations  now  in  use  in  England. 
They  are  termed  "  statements  of  claim." 

The  Kules  of  the  Supreme  Court,  1883,  Order  XIX.  Rule  5,  de- 
clare :  "  The  forms  in  Appendices  C,  D,  and  E,  when  applicable,  and 
when  they  are  not  applicable  forms  of  the  like  character,  as  near  as 
may  be,  shall  be  used  for  all  pleadings ;  and  where  such  forms  are 
applicable  and  sufficient,  any  longer  forms  shall  be  deemed  prolix, 
and  the  costs  occasioned  by  such  prolixity  shall  be  disallowed  to  or 
borne  by  the  party  so  using  the  same,  as  the  case  may  be.  The 
forms  here  given  are  taken  from  Appendix  C."  Cf.  Bigelow,  Torts, 
2d  Camb.  ed.  387. 

1.  Malicious  Prosecution  (No.  15,  s.  6). 

The  defendant  maliciously  and  without  reasonable  and  probable 
cause  preferred  a  charge  of  larceny  against  the  plaintiff  before  a 

^  Cro.  Jac.  67,  Burtou  v.  Mandel. 


DECLARATIONS.  337 

justice  of  the  peace,  causing  the  plaintiff  to  be  sent  for  trial  on  the 
charge  and  imprisoned  thereon,  and  prosecuted  the  plaintiff  thereon, 
at  the  Middlesex  Quarter  Sessions,  where  the  plaintiff  was  acquitted. 

Particulars  of  special  damage  :  — 

Messrs.  L.  &  L.'s  bill  of  costs,  £65. 

Loss  in  business  from  January  1st,  1883,  to  February  18th,  1883, 
£100. 

The  plaintiff  claims  £500. 

Place  of  trial, 

(Signed) 

Delivered. 

2.    Trespass  {No.  2,  s.  7). 

1.  The  plaintiff  is  entitled  to  the  possession  of  Blackacre  in  the 
parish  of  [or,  of  No.  2,  Bridge  Street,  Bristol]  in  the  county 
of 

2.  On  or  before  the  day  of  ,  188  ,  A.  B.  was  seised  in  fee 
and  in  possession  of  the  premises. 

3.  On  the  day  of  ,  188  ,  the  said  A.  B.  died  so  seised, 
whereupon  — 

4.  The  estates  descended  to  the  plaintiff,  his  eldest  son  and  heir- 
at-law. 

5.  After  the  death  of  the  said  A.  B.  the  defendant  wrongfully 
took  possession  of  the  premises. 

The  plaintiff  claims :  — 

(1)  Possession  of  the  premises. 

(2)  Mesne  profits  from  the         day  of 
Place  of  trial, 

(Signed) 

Delivered. 

3.   Conversion  (iVb.  1,  s.  6). 

The  plaintiff  has  suffered  damage  by  the  defendant  wrongfully 
depriving  the  plaintiff  of  two  casks  of  oil  by  refusing  to  give  them 
up  on  demand  \or,  throwing  them  overboard  out  of  a  boat  in  the 
London  docks,  etc.]. 

[If  any  special  damage  is  claimed,  add.] 

Particulars  [fill  them  in]. 

The  plaintiff  claims  £100. 

Place  of  trial,  London. 

(Signed) 

Delivered. 

22 


CASES   ON    COMMON-LAW   PLEADING. 


4.  Detinue  (iVb.   2,  s.  6). 

The  defendant  detained  from  the  plaintiff  the  plaintiffs  goods  and 
chattels,  that  is  to  say,  a  horse,  harness,  and  gig. 

The  plaintiff  claims  a  return  of  said  goods  and  chattels  or  their 
value,  and  £10  for  their  detention. 
Place  of  trial,  Lincolnshire. 

(Signed) 

Delivered. 

5.    Fraudulent  Sale  of  Lease  (No.  14,  s.  6). 

The  plaintiff  has  suffered  damage  from  the  defendant  inducing 
the  plaintiff  to  buy  the  goodwill  and  lease  of  the  "  George  "  public- 
house.  Stepney,  by  fraudulently  representing  to  the  public  that  the 
takings  of  the  said  public-house  were  £40  a  week,  whereas  in  fact 
they  w^ere  much  less,  to  the  defendant's  knowledge. 

Particulars  of  special  damage :  — 

[Fill  them  in.] 

The  plaintiff  claims  £ 

(Signed) 

Delivered. 

6.   N'egligent  Driving  (No.  3,  s.  6). 

The  plaintiff  has  suffered  damage  from  personal  injuries  to  the 
plaintiff  and  damage  to  his  carriage,  caused  by  the  defendant  or  his 
servant  on  the  15th  day  of  January,  1882,  negligently  driving  a 
cart  and  horse  in  Fleet  Street. 

Particulars  of  expenses,  &c. :  — 

£        s.     d. 

Charges  of  Mr.  Smith,  surgeon,  10  10  0 

Charges  of  Mr.  Jones,  coach  maker    14     5  6 

24  15  6 
The  plaintiff  claims  £150. 
Place  of  trial,  London. 

(Signed) 

Delivered. 


CHAPTER  VII. 

DEMURRERS. 

The    purpose   of  the  chapter  may  be  briefly  stated.      We 
shall  ascertain : 

1.  The  matter  admitted  by  a  demurrer. 

2.  The  several  kinds  of  demurrers,  and  their  origin. 

3.  The  effect  of  demurrers  in  opening  up  the  record. 

4.  What  are  demurrers  to  evidence  and  what  are  special 
verdicts. 

"  An  issue  of  the  law,  which  we  call  a  demurrer,  is  when  admit- 
ting the  matters  alleged  either  of  them  resteth  in  the  judgment  of 
the  law."     Finch's  Law,  c.  xl. 

A  demurrer  cometh  of  the  Latin  word  demorari,  to  abide ;  and 
therefore  he  which  demurreth  in  law,  is  said,  he  that  abideth  in  law : 
Moratur  or  demoratur  in  lege.  Whensoever  the  learned  covmsel  of  a 
party  is  of  opinion  that  the  count  or  plea  of  the  adverse  party  is 
insufficient  in  law,  then  he  demurreth  or  abideth  in  law,  and  refer- 
reth  the  same  to  the  judgment  of  the  court.  Coke  upon  Littleton, 
71  b. 


1.    The  Matter  admitted  by  a  Demurrer. 
THOMPSON   V.   HARVEY. 
New  Jersey  Supreme  Court,  November  Term.     1811. 
Reported  Pennington's  Reports,  *894. 

This  was  an  action  brought  on  an  arbitration  bond.  The  defend- 
ant prayed  oyer  of  the  condition,  and  pleaded  no  award.  The  plain- 
tiff replied,  setting  out  an  award,  and  assigned  a  breach  ;  to  this 
replication  the  defendant  demurred  specially,  and  assigned  as 
cause  of  demurrer  that  it  did  not  appear  on  the  award  that  the 
arbitrators  had  been  sworn.  This  fact  had  been  averred  in  the 
replication. 

Hunter,  for  the  defendant,  cited  State  Reports,  144,  271. 


340  CASES   ON   COMMON-LAW   PLEADING. 

Griffith,  contra.  The  act  of  assembly  does  not  require  the  oath 
of  the  arbitrators  to  appear  in  the  award  ;  it  is  sufficient  if  the  fact 
is  aveiTed  and  proved. 

By  the  court.  The  cases  cited  went  on  the  ground  that  it  did 
not  appear  on  the  record  that  the  referees  were  sworn ;  facts  well 
pleaded  are  admitted  by  the  demurrer.  We  think  it  sufficiently 
appears  on  this  record  that  the  arbitrators  were  sworn. 

Judgment  for  plaintiff. 


COLE  V.  MAUNDER.  1 

In  the  King's  Bench.     1635. 
Eeported  in  2  Rolle's  Abridgment,  548. 

If  one  enters  my  close,  and  with  an  iron  sledge  and  bar  breaks 
and  displaces  the  stones  on  the  land,  being  my  chattels,  and  I  re- 
quest him  to  desist,  and  he  refuses,  and  threatens  me  if  I  shall 
approach  him  ;  and  upon  this  I,  to  prevent  him  from  doing  more 
damage  to  the  stones,  not  daring  to  approach  him,  throw  some  stones 
at  him  moUiter  et  molli  manu,  and  they  fall  upon  him  niolliter,  still 
this  is  not  a  good  justification,  for  the  judges  say  that  one  cannot 
throw  stones  molUter,  although  it  were  confessed  by  a  demurrer ; 
and  it  would  be  perilous  to  give  men  liberty  to  throw  stones  in  de- 
fence of  their  possession,  for  when  a  stone  is  thrown  from  the  hand, 
it  cannot  be  guided,  and  (here)  a  justification  of  a  battery  in  defence 
of  possession,  although  this  arises  from  the  possession,  still  (in)  the 
conclusion  is  in  defence  of  the  person. 

Judgment  for  plaintiff. 

WELLS  V.   WIGON,   ALPORT,  ETC.^ 

In  the  Common  Pleas.     1671. 

Reported  Carter,  224. 

Trespass  for  taking  of  goods  in  Norwich.  One  pleads  Non  CvJp. 
■The  other  defendants  are  two  sheriffs  and  sergeants,  and  these  per- 
sons make  a  justification  :  (that  is  to  say)  that  city  is  an  ancient 
city,  and  in  the  time  of  Hen.  IV.  incorporated  by  the  name  of  Bailiff 
and  Commonalty ;  afterwards  by  a  new  name  of  Mayor  and  Sheriffs, 
and  that  there  was  an  ancient  court  held  there  time  out  of  mind  to 
hold  pleas  in  any  personal  action  of  any  value ;  and  sets  forth  that 

1  See  Weston  v.  Carter,  1  Siderfin,  9,  post. 

2  The  opinions  of  Vaughn,  Chief  Justice,  Wild  and  Windham,  JJ.,  are  omitted. 


DEMURRERS.  341 

Alport,  one  of  these  defendants,  brought  an  action  in  the  Town-Court 
of  Norwich  upon  insimul  computasset  for  £14,  and  allegeth  this  to 
be  within  the  jurisdiction  of  this  court.  Upon  summons  went  out 
an  attachment  to  two  of  the  sergeants,  and  by  virtue  of  this  process 
did  attach  the  goods ;  and  further  sets  forth  that  the  said  Alport, 
one  other  of  the  defendants,  did  require  these  two  sergeants  to 
execute  this  process.     And  demands  judgment  si  actio. 

The  plaintiff  replies,  after  protestation  that  the  goods  were  not 
of  such  a  value,  he  pleads  de  injuria  sua  propria  they  took  the 
goods,  absque  hoe  that  T.  Wells  the  plaintiff  did  ever  account  within 
the  jurisdiction  of  the  court,  or  was  found  in  arrearages,  or  that  he 
did  ever  borrow  of  Alport  £14.  El  hoc  paratus  est  verificare.  To 
this  the  defendants  demur. 

The  case  is  : 

Five  persons  are  sued  for  taking  of  goods.  Two  say  they  are  ser- 
geants at  mace  within  Norwich,  and  an  attachment  comes  to  them 
to  be  served  per  bona  ^  catalla  of  the  plaintiff  to  appear;  and  by 
virtue  of  this  attachment  they  took  these  goods.  Say  the  sheriffs, 
action  was  commenced  within  the  jurisdiction  of  our  court  against 
this  Wells,  and  as  our  duty  was,  we  granted  out  an  attachment  to 
take  these  goods.  Saith  Alport,  I  had  a  suit  there  against  the 
party,  and  I  desired  them  to  grant  out  an  attachment.     And 

Baldwin.  We  conceive  this  is  a  good  justification,  and  the  trav- 
erse in  the  replication  is  idle.  It  is  the  duty  of  the  sheriffs  to 
justify,  the  bailiffs  are  not  to  question.  10  Rep.  Case  of  the  Mar- 
shalsea.  He  doth  not  induce  his  traverse,  neither  doth  he  tell  you 
where  the  jurisdiction  was.  But  absque  hoc  the  cause  was  within 
the  jurisdiction  of  the  court.  So  that  the  defendant  is  to  make 
good  by  this  traverse  :  1,  the  right  of  action  ;  2,  the  locality. 

Jones,  Serjeant,  pro  querente. 

By  protestation  that  the  goods  are  not  of  the  value  of  £80,  but  he 
pleads  the  account  was  oot  [not  ? —  Ed. J  within  the  jurisdiction  of  the 
court.  He  hath  no  time  to  plead  to  the  jurisdiction  now„but  to  take 
advantage  of  the  defendant's  plea.  By  the  demurrer  it  appears  no 
account  was  within  the  jurisdiction  of  the  court.  This,  being  matter 
of  fact,  is  confessed. 

Baldwin.  A  demurrer  is  a  confession  of  everything  well  pleaded. 
Our  demurrer  points  to  what  is  idle,  and  to  no  purpose. 

Ellis,  Justice.  If  the  point  of  jurisdiction  be  not  pleaded  well, 
the  demurrer  is  no  confession.  Upon  a  justicies  they  many  times 
sweep  away  all  the  goods ;  but  if  the  party  appear,  and  put  in 
pledges,  they  are  released.     Qucere. 


342  CASES   ON    COMMON-LAW   PLEADING. 

RAINSFORD   v.  FENWICK.^ 

Ix  THE  Common  Pleas.     1670. 

Reported  Carter,  215. 

Action  upon  the  case ;  a  quantum  meruit  for  divers  wares  and 
merchandises,  as  cloaths,  laces,  for  himself  and  his  servant ;  and  also 
indebitatus  assumpsit,  and  mentions  the  wares  in  particular.  The 
defendant  pleads  infra  aetatem.  The  plaintiff  replyes  and  con- 
fesseth  the  minority,  and  says :  At  that  time  he  was  son  and  heir 
apparent  of  Sir  E.  F.  and  was  by  consent  of  his  father  in  treaty  of 

a  marriage  with  the  Earl  of Daughter,  and  these  things  were 

for  wedding  cloaths.     The  defendant  demurs  to  this. 

Sise,  Serjeant  [for  the  plaintiff]. 

Brome,  Serjeant,  contra. 

1.  It  appears  not  how  many  servants  he  had. 

2.  It  appears  not  that  those  servants  he  had  were  necessary  for  his 
attendance. 

3.  It  appears  not  what  was  for  himself,  and  what  for  his  servants. 
It  appears  by  the  pleading  that  his  own  father  was  alive.  He  takes 
upon  him  to  provide  for  himself,  and  it  may  be  more  than  his  father 
will  allow  him. 

Wild  [Justice].  Indebitatus  assumpsit.  The  defendant  pleads 
under  age :  the  plaintiff  replies  wares  were  sold  for  necessary  ap- 
parel suitable  to  his  degree  :  the  defendant  demurs,  by  his  demur- 
rer he  hath  confesst  them  to  be  necessaries :  the  defendant  should 
have  come  and  rejoyned  they  were  not  for  necessaries,  and  so  upon 
the  issue ;  the  jury  should  have  tried  it. 


BARBER   V.   VINCENT. 

In  the  Common  Pleas.     1680. 
Keported  Freeman,  531. 

Indebitatus  assumpsit  for  a  horse  sold  for  £20.  The  defendant 
pleaded  deins  age. 

The  plaintiff  rephed,  that  he  sold  him  the  horse  for  his  conven- 
iency  to  carry  him  about  his  necessary  affairs  ;  to  which  the  defend- 
ant demurred. 

1  Plaintiff's  argument,  and  the  opinions  of  Vaughn,  C.  J.,  Wild,  Tirrell,  and 
Archer,  J.,  not  relating  to  the  demurrer,  are  omitted. 


DEMURRERS.  343 

And  the  sole  question  was,  whether  an  action  would  lie  against 
an  infant  for  money  for  a  horse  sold  ?  It  was  urged  on  the  de- 
fendant's part,  that  an  infant  was  chargeable  only  for  necessaries, 
as,  meat,  drink,  clothes,  lodging,  and  education. 

But  the  court  were  of  a  contrary  opinion  ;  for  the  plaintiff  having 
averred  that  he  sold  him  the  horse  to  ride  about  upon  his  necessary 
occasions,  and  the  defendant  having  confessed  it  by  his  demurrer, 
it  must  now  be  taken  to  be  so.  If  the  defendant  had  traversed, 
then  the  jury  must  have  judged  of  it,  whether  it  were  necessary  or 
convenient,  or  not ;  and  so  likewise  of  the  price  of  the  horse,  whether 
it  were  excessive  or  not. 

Jud'  pro  quer'  nisi. 

AMORY   AND   OTHERS  v.   M'GREGOR. 

Supreme  Court  of  the  State  of  New  York,  Albany.    August,  1815. 

Reported  12  Johnson,  287. 

This  was  a  special  action  on  the  case  for  negligence  in  the  trans- 
portation of  goods.  The  declaration  contained  two  counts.  [These 
are  here  omitted.] 

To  this  declaration  there  was  a  general  demurrer,  and  joinder  in 
demurrer. 

Col46n,  in  support  of  the  demurrer. 
D.  B.  Ogden,  contra. 

Per  curiam.  This  case  comes  before  the  court  on  a  general  de- 
murrer to  the  declaration.  And  the  ground  upon  which  it  has  been 
attempted  to  support  the  demurrer  is,  that  the  day  laid  in  the  decla- 
ration is  during  the  existence  of  hostilities  between  this  country  and 
Great  Britain ;  and  that,  of  course,  the  contract  set  forth  in  the 
declaration  is  void,  being  contrary  to  the  laws  of  the  United  States. 
Without  giving  any  opinion  upon  the  validity  of  the  contract,  if  in 
point  of  fact,  it  was  made  at  the  time  laid  in  the  declaration,  it  is 
sufficient,  in  this  case,  to  say,  that  the  day  being  immaterial,  the 
plaintiff  would  not  be  obliged  to  prove  the  contract  to  have  been 
made  on  the  day  laid.  Nothing  appears  upon  the  face  of  the  decla- 
ration, showing  the  contract  to  be  illegal  or  void.  And  it  is  a 
general  rule,  that  a  party  cannot  demur,  unless  the  objection  ap- 
pears on  the  face  of  the  pleadings.  And  so  are  all  the  cases  referred 
to,  and  relied  upon,  by  the  defendant's  counsel.  In  Cheetham  v. 
Lewis  (3  Johns.  Rep.  42)  and  Waring  v.  Yates  (10  Johns.  Rep.  119), 
it  appears,  from  the  declaration,  when  the  suit  was  commenced,  and 


344  CASES    ON    COMMON-LAW    PLEADING. 

the  cause  of  action  arose  afterwards.  The  plaintiff  must,  therefore, 
have  judgment,  with  leave  to  the  defendant,  however,  to  plead  to 
the  declaration. 

Judgment  for  the  plaintiff. 


\_Extract  frorn] 

PARTRIDGE  v.   STRANGE  AND   CROKER. 

In  the  Common  Pleas. 

Reported  Plowden's  Repoets,  77  at  85. 

[By  the  court.]  "  For  a  demurrer  is  a  confession  of  all  matters  of 
fact,  but  not  of  matters  of  law,  for  by  the  demurrer  they  put  them- 
selves upon  the  judgment  of  the  court,  and  don't  confess  the  law  to 
be  against  them." 

L 

SMITH  V.  HENRY   COUNTY.^ 

Supreme  Court  of  Iowa,  December  Term.     1863. 

Reported  15  Iowa,  385. 

Plaintiff  claims  the  amount  due  upon  certain  coupons,  set  out  in 
his  petition,  and  alleges  that  the  county  of  Henry  issued  the 
bonds,  to  which  said  coupons  were  attached,  in  accordance  with 
the  vote  of  the  electors  of  said  county,  at  a  special  election  held  for 
that  purpose,  pursuant  to  law ;  the  object  being  to  assist  in  the 
construction  of  a  railway  through  said  county.  Demurrer  to  peti- 
tion sustained,  and  plaintiff  appeals. 

T.  W.  Woolson,  for  the  appellant. 

Palmer  &  Ambler,  for  the  appellee. 

Wriglit,  J.  It  is  claimed  in  the  first  place  that  the  question  of 
the  right  or  power  of  the  county  to  issue  these  bonds  does  not 
arise,  as  the  petition,  the  facts  stated  in  which  are  admitted  by  the 
demurrer,  avers  that  said  bonds  were  issued  according  to  law.  The 
rule  is,  that  a  demurrer  admits  the  facts  which  are  well  pleaded,  but 
not  the  law  as  claimed  by  the  pleader,  nor  the  inferences  and  con- 
clusions drawn  by  him.  (Games  v.  Kobb,  8  Iowa,  193 ;  Chitty,  PI., 
700.)  If,  therefore,  there  was  no  authority  to  issue  these  bonds,  the 
averment  of  this  legal  conclusion  cannot  assist  the  pleader.  .  .  .  The 
demurrer  was  properly  sustained,  and  the  judgment  should  be 

Affirmed. 

1  A  part  of  the  opinion  not  here  relevant  is  omitted.  —  Ed. 


DEMURRERS.  345 


PEASE  V.  PHELPS,  ADMINISTRATOR   DE  BONIS  RON 
OF  THE  ESTATE  OF  SAMUEL  STEBBINS,  DECEASED.^ 

In  the  Supreme  Court  of  Errors  in  the  State  of  Connecticut. 

June,  1834. 

Keported  10  Connecticut,  62. 

This  was  an  action  on  a  promissory  note  made  by  Samuel  Steb- 
bins,  deceased,  in  these  words:  "  Simsbury,  January  7,  1818.  I 
promise  to  pay  John  Wood  Pease,  when  he  shall  arrive  at  the  age 
of  twenty-one  years,  the  sum  of  one  thousand  dollars ;  value  re- 
ceived.    Samuel  Stebbins." 

The  defendant  pleaded  in  bar  that  Samuel  Stebbins  died  in  Janu- 
ary, 1821,  leaving  his  last  will  and  testament,  whereby  he  appointed 
his  wife,  Ursula  Stebbins,  and  Samuel  S.  Stebbins,  executors  thereof ; 
that  the  plaintiff  became  twenty-one  years  of  age  on  the  fifth  of 
December,  1827  ;  and  the  plaintiff's  right  and  claim  accrued  after 
the  death  of  said  Samuel  Stebbins,  viz.  on  the  fifth  of  Decem- 
ber, 1827,  and  was  not  exhibited  to  said  executors,  or  either  of 
them,  by  the  plaintiff  within  twelve  months  after  the  right  of  action 
accrued,  and  is  the  same  for  which  the  suit  is  brought. 

The  plaintiff  replied  that  on  the day  of  March,  1831,  and 

before  the  expiration  of  the  time  limited  for  the  exhibition  of 
claims  against  said  estate,  the  plaintiff  caused  said  note  to  be 
exhibited  to  said  Ursula,  and  the  same  was  then  exhibited  to  and 
demanded  of  the  said  Ursula  as  executrix. 

The  defendant,  in  his  rejoinder,  averred  that  said  claim  was  not 
exhibited  to  said  executors,  or  either  of  them,  by  the  plaintiff, 
within  twelve  months  after  the  plaintiff  arrived  to  the  age  of 
twenty-one  years;  and  demurred  to  the  residue  of  the  replication. 
The  plaintiff  joined  issue ;  and  thus  the  pleadings  terminated. 

The  cause  was  tried  on  the  issue  in  fact,  at  Hartford,  September 
Term,  1833,  before  Church,  J. 

The  plaintiff  claimed,  and  requested  the  court  to  instruct  the 
jury,  that  upon  the  facts  conceded  on  the  pleadings  by  the  demur- 
rer, they  should  find  that  the  note  was  duly  presented  within  one 
year  after  the  plaintiff  came  of  age,  and  should,  therefore,  return  a 
verdict  for  the  plaintiff.  The  court  did  not  so  instruct  the  jury; 
and  the  defendant  obtained  a  verdict.  The  plaintiff  thereupon 
moved  for  a  new  trial ;  and  the  case  was  reserved  for  the  opinion 

1  The  reporter's  statement  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


346  CASES   ON    COMMON-LAW   PLEADING. 

of    the    Supreme  Court  of  Errors  upon  the  facts    stated   on   the 
record,  and  on  the  matters  embraced  by  the  motion. 

Hungerford  and  W.  W.  Ellsworth,  for  the  plaintiff. 

Sherman  and  Toncey,  for  the  defendant.^ 

Church,  J.  "The  question  submitted  by  the  pleadings  to  the 
jury  was,  whether  the  note  in  suit  had  been  exhibited  by  the  plain- 
tiff to  Ursula  Stebbins,  one  of  the  executors,  within  twelve  months 
after  the  plaintiff  arrived  at  the  age  of  twenty-one  years ;  and  to 
show  that  it  had  been  so  exhibited,  the  plaintiff  offered  witnesses  to 
prove  that  the  said  Ursula,  while  executrix,  had  acknowledged  that 
fact.  This  testimony  was  rejected  by  the  judge  ;  and  in  my  opinion 
it  was  properly  rejected.  .  .  . 

"  But  it  was  further  claimed  by  the  plaintiff  that  upon  the  facts 
conceded  on  the  pleadings  by  the  demurrer,  the  court  should  have 
instructed  the  jury  to  find  that  the  note  in  question  was  duly  pre- 
sented within  twelve  months,  as  averred  in  the  replication.  This 
claim  of  the  plaintiff  cannot  be  supported.  A  demurrer  presents 
only  an  issue  in  law  to  the  court  for  consideration ;  the  jury  have 
no  concern  with  it ;  and  although  it  is  a  rule  of  pleading  that  a 
demurrer  admits  facts  well  pleaded  for  the  sole  purpose  of  determin- 
ing their  legal  sufficiency,  yet  as  a  rule  of  evidence  it  was  never 
supposed  that  a  demurrer  admitted  anything."  Tompkins  v.  Ashby, 
1  Moody  &  Malkin,  32  (22  Serg.  &  Lowb.  239). 

The  other  judges  were  of  the  same  opinion,  except  Bissell,  J., 
who  was  not  present  when  the  case  was  argued,  and  therefore  gave 
no  opinion. 

New  trial  to  be  granted. 

2.    The  Several  Kinds  of  Demurrers,  and  their  Origin. 

SPECIAL   DEMURREES. 

WALLIS   V.    SAVIL,   et  al    [Note.] 

In  the  Common  Pleas.     1702. 
Reported  Nelson's  Lutwtche,  16,  at  17. 

'T  is  true,  in  ancient  times  the  pleadings  were  very  plain,  because 
the  matter  was  then  more  regarded  than  forms ;  but  in  the  reign  of 
Edward  III.,  my  Lord  Coke  tells  us,  pleadings  grew  to  perfection 
and  then  more  exceptions  were  taken  to  forms  than  to  the  matter 
itself. 

1  The  arguments  of  counsel  are  omitted. 


DEMURPvEES.  347 

Agreeable  to  this  was  the  opinion  of  Mr.  Justice  Thirning  many- 
years  before,  viz.  that  such  a  plain  way  of  pleading  (where  the  mat- 
ter and  not  the  forms  was  regarded)  was  very  feeble  to  what  it 
was  in  the  reign  of  Edward  III.,  and  yet  we  hear  of  no  causes  either 
lost  or  delayed  by  such  feeble  pleading,  which  could  never  have 
escaped  the  diligence  of  my  Lord  Coke,  who  was  so  great  an  advo- 
cate for  forms,  that  he  tells  his  reader  they  conduced  to  the  right 
understanding  of  the  law,  and  that  'tis  a  necessary  part  of  a  good 
common  lawyer  to  be  a  good  pronotary  ;  and  yet  he  farther  tells  us, 
that  many  causes  were  lost  when  pleading  was  at  perfection,  that 
is,  when  the  substance  and  matter  itself  was  not  so  much  regarded 
as  the  forms  of  pleading,  which  began,  as  he  observes,  about  the 
beginning  of  the  reign  of  Edward  III.  and  in  a  few  years  was  im- 
proved to  such  niceties  that  a  law  was  made  even  in  that  reign, 
that  no  man  should  be  prejudiced  by  the  forms  of  pleaders,  so  as 
the  matter  of  the  action  was  set  forth  in  the  declaration.  [36  Edw. 
III.  cap.  15,  cf.  Co.  Litt.  168,  idem;  303  a.'] 

But  notwithstanding  that  statute,  the  serjeants-at-law  (who  for 
their  skill  in  pleading  were  by  the  old  writers  called  counters)  had 
spun  this  part  of  the  law  so  fine,  and  made  it  so  intricate  by  forms, 
that  the  Parliament,  Anno  '21  Eliz.,  found  it  necessary  to  make  an- 
other statute,  giving  the  judges  power,  after  demurrer  joined,  to 
give  judgment  according  to  the  right  of  the  cause,  and  matter  in 
law,  without  regard  to  forms  in  pleading,  excepting  such  omissions 
or  defects  as  the  party  demurring  shall  particularly  express  and 
show  for  cause  of  his  demurrer. 

But  still  the  opinions  of  men  did  so  far  lean  towards  forms,  that 
some  omissions  and  defects  therein  have  been  taken  to  be  matter  of 
substance ;  as,  for  instance,  an  immaterial  traverse ;  the  omission  of 
entering  pledges  on  the  bill  or  declaration ;  the  omission  of  a  pro- 
fcrt  hie  in  curia,  where  a  deed  is  mentioned  in  the  declaration,  or  in 
any  letters  of  administration  ;  the  omission  of  vi  et  armis  et  contra 
pacem  ;  the  want  of  an  averment,  viz.  and  hoc  paratus  est  verificare; 
or  not  alleging  prout  patet  per  recordum  ;  all  which  are  only  matters 
of  form,  and  yet  they  have  been  lield  to  be  substance. 

Therefore,  Anno  4  and  5  Anne,  another  statute  was  made,  that 
after  Trinity  Term,  1706,  no  advantage  or  exception  shall  be  taken 
to  the  pleading  for  any  of  those  omissions,  unless  it  shall  be  partic- 
ularly shown  for  cause  of  demurrer. 

Enacted  27  Eliz.  cap.  x.  par.  1. 

Forasmuch  as  excessive  charges  and  expenses,  and  great  delay  and 
hindrance  of  justice,  hath  grown  in  actions  and  suits  between  the  sub- 


348  CASES   ON   COMMON-LAW   PLEADING. 

jects  of  this  realm,  b}-  reason  that  upon  some  small  mistaking  or  w^ant 
of  form  in  pleading,  judgments  are  often  reversed  by  writs  of  error, 
and  oftentimes  upon  demuirers  in  law  given  otlierwise  than  the  matter 
in  law  and  very  right  of  the  cause  doth  require,  whereby  the  parties 
are  constrained  eitlier  utterly  to  lose  their  riglit,  or  else,  after  long 
time  and  great  trouble  and  expenses,  to  renew  again  their  suits  ;  for 
remedy  whereof,  be  it  enacted  by  the  Queen's  most  excellent  majesty, 
the  lords  spiritual  and  temporal,  and  the  commons,  in  this  present  par- 
liament assembled  and  by  the  authority  of  the  same,  That  from  hence- 
forth, after  demurrer  joined  and  entered  in  any  action  or  suit  in  any 
court  of  record  witliin  this  realm,  the  judges  shall  proceed  and  give 
judgment  according  as  the  very  right  and  cause  of  the  matter  in  law 
shall  appear  unto  them,  witliout  regarding  any  imperfection,  defect,  or 
want  of  form  in  any  writ,  return,  plaint,  declaration,  or  other  pleading, 
process,  or  course  of  proceeding  whatsoever,  except  those  only  which 
the  party  demurring  shall  specially  and  particularly  set  down  and  ex- 
press together  with  his  demurrer ;  and  that  no  judgment  to  be  given 
shall  be  reversed  by  an  writ  of  error,  for  any  such  imperfection,  defect, 
or  want  of  form  as  is  aforesaid,  except  such  only  as  is  before  excepted. 


ANONYMOUS. 

Anno  1703. 

Eeported  3  Salkeld,  122. 

Per  Holt,  Chief  Justice.  There  were  special  demurrers  at  com- 
mon law,  but  they  were  never  necessary  but  in  eases  of  duplicity, 
and  therefore  they  were  seldom  practised  ;  for  as  the  law  was  then 
taken  to  be  upon  a  special  demurrer,  the  party  could  take  advantage 
of  no  other  defect  in  the  pleading,  but  to  that  which  was  specially 
assigned  for  cause  of  his  demurring. 

2.  But  upon  a  general  demurrer  he  might  take  advantage  of  all 
manner  of  defects,  that  of  duplicity  only  excepted  ;  and  there  was 
no  inconvenience  in  such  practice,  for  the  pleadings  being  at  bar 
viva  voce,  and  the  exceptions  taken  ore  ternus,  the  causes  of  demurrer 
were  as  well  known  upon  a  general  demurrer  as  upon  a  special  one ; 
therefore  after  the  reformation,  when  the  practice  of  pleading  at  bar 
altered,  the  use  of  general  demurrers  still  continued,  and  thereby 
this  public  inconveniency  followed,  that  the  parties  went  on  to 
argue  a  general  demurrer  not  knowing  what  they  were  to  argue, 
and  this  was  the  occasion  of  making  the  statute  27  Eliz.,  by  which 
it  is  enacted,  that  the  causes  of  demurrer  should  be  known  in  all 
cases,  and  this  was  restorative  of  the  common  law. 

3.   Demurrer  to  the  evidence  admits  the  truth  of  the  fact,  but 


DEMURRERS.  349 

denies  its  effects  in  law ;  and  if  such  demurrer  is  at  the  Assizes,  it 
shall  be  tried  and  determined  in  B.  R.,  or  in  C.  B.,  etc.,  and  if  the 
demurrer  is  upon  written  evidence,  the  plaintiff  must  join  or  waive 
it ;  otherwise,  if  it  is  upon  parol  evidence. 

4.  Many  things  have  been  adjudged  ill  upon  a  special  demurrer, 
which  are  otherwise  upon  a  general  demurrer ;  as,  for  instance,  in 
trespass,  the  defendant  pleaded  a  descent  to  him  as  heir,  and  did  not 
say  iilio  and  heredi,  or  how  he  was  heir,  this  is  naught  on  a  special 
demurrer. 

5.  So  in  debt  upon  a  bond  to  save  harmless,  the  defendant  pleads 
indamnijicatum  servavit.  ' 

6.  So  petit  Judiciu'  si  ah  actione  instead  oi  petit  judieiu'  damna. 


LAMPLOUGH  v.  SHORTRIDGE. 

In  the  King's  Bench.     1706. 

Reported  1  Salkeld,  219. 

In  demurrer  for  duplicity,  it  is  not  sufficient  to  demur,  quia  duplex 
est,  or  duplicem  habet  materiam  ;  but  the  party  must  show  wherein  ; 
for  the  statute  by  requiring  to  show  cause  intended  to  oblige  the 
party  to  lay  his  linger  upon  the  very  point.     Per  Holt,  C.  J. 

Enacted  4  Ann.  cap.  xvi.  §  1. 

For  the  amendment  of  the  law  in  several  particulars,  and  for  the 
easier,  speedier,  and  better  advancement  of  justice,  be  it  enacted  by 
the  Queen's  most  excellent  majest}',  by  and  with  the  advice  and  con- 
sent of  the  lords  spuitual  and  temporal,  and  commons,  in  this  present 
parliament  assembled,  and  by  the  authority  of  the  same,  That  from 
and  after  the  first  da}'  of  Trinity  term,  which  shall  be  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  six,  where  any  demurrer  shall 
be  joined,  and  entered  in  an}'  action  or  suit  in  any  court  of  record 
witliin  tills  realm,  the  judges  shall  proceed  and  give  judgment,  accord- 
ing as  the  very  right  of  the  cause  and  matter  in  law  shall  appear  unto 
them,  without  regarding  any  imperfections,  omission,  or  defect  in  any 
writ,  return,  plaint,  declaration,  or  other  pleading,  process,  or  course 
of  proceeding  whatsoever,  except  those  only  which  the  party  demurring 
shall  specially  and  particularly  set  down  and  express,  together  with 
his  demurrer,  as  causes  of  the  same,  notwithstanding  that  such  imper- 
fection, omission,  or  defect  might  have  heretofore  been  taken  to  be 
matter  of  substance,  and  not  aided  by  the  statute  made  in  the  twenty- 
seventh  year  of  Queen  Elizabeth,  intituled,  "An  Act  for  the  further- 
ance of  justice  in  case  of  demurrer  and  pleadings,"  so  as  suflicient 


350  CASES    ON   COMMON-LAW    PLEADING. 

matter  appear  in  the  said  pleadings,  upon  which  the  court  may  give 
judgment  according  to  the  very  right  of  the  cause  ;  and  therefore  from 
and  after  the  said  first  day  of  Trinity  term,  no  advantage  or  exception 
shall  be  taken  of  or  for  an  immaterial  traverse ;  or  of  or  for  the  default 
of  entering  pledges  upon  any  bill  or  declaration  ;  or  of  or  for  the  de- 
fault of  alleging  the  bringing  into  court  any  bond,  bill,  indenture,  or 
other  deed  whatsoever  mentioned  in  the  declaration  or  other  pleading ; 
or  of  or  for  the  default  of  alleging  of  the  bringing  into  court  letters 
testamentary,  or  letters  of  administration;  or  of  or  for  the  omission  of 
vi  et  armis  et  contra  pacem,  or  either  of  them ;  or  of  or  for  want  of 
averment  of  hoc  paratus  est  verificare,  or  hoc  paratus  est  verijicare 
per  recordum  or  of  or  for  not  alleging  prout  patet  per  recordum,  but 
the  court  shall  give  judgment  according  to  the  very  right  of  the  cause, 
as  aforesaid,  without  regarding  any  such  imperfections,  omissions,  and 
defects,  or  any  other  matter  of  like  nature,  except  the  same  shall  be 
specially  and  particularly  set  down  and  shown  for  cause  of  demurrer. 

THE   MASTER   AND   WARDENS   OF   THE   SOCIETY   OF 
INNHOLDERS   IN   LONDON   v.   GLEDHILL.^ 

In  the  King's  Bench.     1756. 
Reportkd  Saver's  Keports,  274. 
Errors  in  form  cannot  be  availed  of  on  a  general  demurrer. 

In  the  declaration  in  an  action  of  debt,  for  the  penalty  of  five 
pounds  inflicted  by  a  by-law,  it  was  alleged :  that  the  Society  of  Inn 
holders  was  incorporated  by  a  charter  from  King  Charles  the  Second ; 
that  by  the  charter  a  power  was  given  of  making  by-laws,  and  of  in- 
flicting penalties  for  the  breach  thereof ;  that  a  by-law  was  made, 
by  which  it  was  ordained,  that  every  person,  being  a  freeman  of  the 
company,  who  shall  be  elected  upon  the  livery,  shall  accept  the 
livery  and  clothing,  and  upon  so  doing  pay  a  fine  of  ten  pounds ; 
or  upon  a  refusal  to  accept  the  livery  and  clothing,  shall  forfeit 
the  sum  of  five  pounds  to  the  master  and  wardens,  to  the  use  of  the 
master,  wardens,  and  society,  the  penalty  to  be  sued  for  by  the 
master,  wardens,  and  society,  in  the  name  of  the  master,  wardens, 
and  society,  in  any  of  the  king's  courts ;  that  the  defendant  being 
a  freeman  of  the  company,  was  elected  upon  the  livery ;  that  due 
notice  was  given  him  of  his  being  elected  ;  that  he  refused  to  accept 
the  livery  and  clothing ;  and  that  he  has  not  paid  the  penalty  of 
five  pounds. 

1  A  part  of  Ryder,  Ch.  J.'s  opinion,  and  the  opiuions  of  Foster  and  Wilraot,  J.,  are 
.     omitted.     Denison,  J.,  gave  no  opinion. 


DEMURRERS.  351 

Upon  a  general  demurrer  to  this  declaration,  the  question  was, 
whether  it  be  good  ? 

It  was  holden  that  it  was  not. 

And  by  Eyder,  C.  J.,  .  .  .  We  are  of  opinion  that  this  declaration 
is  not  good ;  because  it  is  not  therein  alleged,  that  the  Company  of 
Inn  holders  has  a  livery.  .  .  . 

It  has  been  said :  that  the  want  of  its  being  alleged  in  the 
declaration,  that  the  company  have  a  livery,  is  a  matter  of  form, 
which  cannot  be  taken  advantage  of  upon  a  general  demurrer ;  but 
we  are  of  opinion,  that  this  is  traversable,  and  might  have  been 
put  in  issue ;  and,  consequently,  that  it  is  a  matter  of  substance. 

Foster,  Denison,  and  Wilmot,  J.,  concurred.^ 


HEARD   V.   BASKERVILE. 
In  the  Common  Pleas.     1614. 
Reported  in  Hobart,  232. 
Form  and  substance  distinguished. 

William  Heard  brought  a  replevin  against  Richard  Baskervile ; 
the  defendant,  as  bailiff  to  John  Dinham,  Esq.,  cognovit  captionem, 
for  he  saith,  that  long  before,  etc.,  one  Thorne  was  seised  of  the 
place,  etc.,  in  fee,  and,  12  Edw.  II.,  granted  a  rent  of  two  shillings, 
with  a  clause  of  distress,  unto  one  Millington :  and  that  he  died 
seised,  after  whose  death  the  rent  descended  unto  another  MilHng- 
ton,  as  his  cousin  and  heir,  without  showing  how  his  cousin ;  and 
then  shows,  that  the  latter  Millington,  21  Hen.  VIII.,  did  grant  unto 
one  Dinham,  and  his  heirs,  the  said  rent  in  exchange,  which  was 
executed  on  both  sides;  and  then  conveys  the  rent  down  by  descent 
unto  Dinham,  in  whose  right,  etc. ;  upon  which  conusans  the  plaintiff 
demurred  generally. 

And  the  only  question  whereupon  the  court  stood  was,  whether 
the  not  setting  down  of  the  manner  of  cousinage  were  matter  of 
substance,  or  only  of  form,  such  as  by  the  Statute  of  Demurrers,  27 
Eliz.  c.  5,  ought  to  be  particularly  set  down,  or  else  no  advantage  to 
be  taken  of  it. 

This  case,  as  being  of  great  consequence  in  the  rule,  was  argued 
by  the  judges  publicly,  and  adjudged  for  the  defendant,  Warburton 
only  dissenting. 

1  Foster,  J.,  and  Wilmot,  J.,  agreed  that  the  declaration  was  also  bad  for  that  there 
was  uo  allegatiou  that  the  defeudaut  was  a  freemau  of  tiie  City  of  London. 


352  CASES   ON   COMMON-LAW   PLEADING. 

In  this  case  all  the  parts  of  the  statute  were  considered:  the  title 
is  for  the  furtherance  of  justice ;  that  is,  justice  final  and  definitive, 
which  ends  the  controversy  by  deciding  it,  according  to  the  very 
rio-ht.  For  every  several  action  or  suit  hath  a  kind  of  justice  which 
may  be  called  interlocutory,  in  which  a  man  may  fail,  though  his 
rio-ht  be  good,  as  for  want  of  form  before  this  statute,  which  bred 
much  charge  and  multiplicity  of  suits,  and  was  also  a  hinderance 
of  that  definitive  justice,  which  this  statute  intends  to  further. 

Now  the  moderation  of  this  statute  is  such,  that  it  doth  not 
utterly  reject  form,  for  that  were  a  dishonor  to  the  law,  and  to 
make  it  in  etfect  no  art,  but  requires  only  that  it  be  discovered, 
and  not  used  as  a  secret  snare  to  entrap.  And  that  discovery  must 
not  be  confused  and  obscure,  but  special ;  therefore  it  is  not  suffi- 
cient to  say,  that  the  demurrer  is  for  form,  but  he  must  express 
what  is  the  point  and  specialty  of  form  that  he  requires.  And  so  is 
the  word  and  meaning  of  the  statute. 

Now,  then,  the  main  question  is,  what  is  matter  and  what  is  form, 
within  the  meaning  of  the  law  ?  The  statute  best  expresseth  itself 
in  this,  for  it  divideth  itself  into  two  main  members,  which  are 
membra  dividentia. 

First,  Want  or  imperfection  of  form. 

Second,  The  matter  in  law  or  very  right,  scil.  the  true,  mere,  or 
very  right ;  to  which  must  be  added  that  which  the  statute  adds, 
that  this  right,  according  to  which  judgment  is  to  be  given,  must 
appear  to  the  court  within  the  body  of  the  record. 

So  now,  whatsoever  it  is  without  which  the  right  doth  sufficiently 
appear  to  the  court,  it  is  form  within  this  law ;  and  so,  e  converso, 
whatsoever  is  wanting  or  imperfect,  by  reason  whereof  the  right  ap- 
pears not,  is  not  remedied  as  form  within  this  law. 

And  therefore  if  an  executor  or  administrator  bring  an  action  of 
debt,  and  do  not  produce  his  probate  or  administration,  it  is  not 
holpen. 

So  if  a  man  plead  a  conveyance  of  a  rent,  or  the  like,  that  cannot 
pass  without  deed,  without  producing  the  deed  in  plea,  it  is  not 
holpen  ;  for  it  is  not  enough  for  the  party  to  say  that  he  is  executor, 
or  that  rent  was  granted  to  him;  but  the  court  must  see  and 
adjudge  of  it,  or  else  the  right  appears  not,  and  the  adverse  party 
may  cause  the  deed  to  be  enrolled,  which  makes  it  a  part  of  the 
plea,  whereupon  the  court  shall  judge  whether  it  maintain  the  plea 

or  not. 

So  if  the  means  be  wanting  whereby  the  right  should  be  made  to 
appear,  it  is  uncurable ;  as  if  a  man  bring  an  action  of  debt  upon  an 
obligation,  and  produce  it,  but  say  it  may  be  made  beyond  sea,  or 


I 


DEMUKKERS.  353 

in  no  place,  a  general  demurrer  serves.  And  for  the  same  reason 
two  affirmatives  without  a  traverse  is  not  holpeu,  because  it  admits 
no  trial,  without  which  the  court  cannot  see  the  riijht. 

If  a  man  bring  an  action  upon  an  obligation  to  perform  an  award, 
the  defendant  pleads  no  award  made,  the  plaintiff  replies  and  shows 
the  award ;  now  here  is  a  full  issue,  a  negative  and  an  affirmative. 
Yet  if  the  plaintiff  doth  not  also  assign  the  breach,  the  defendant 
may  demur  generally,  yet  that  breach  was  not  traversable,  but  the 
plea  as  between  the  parties  hath  an  issue  before.  And  this  is  but 
an  excrescence  or  surplusage.  But  yet  because  it  doth  appear  to  the 
court  that  he  had  right  or  cause  of  action  without  it,  it  is  matter, 
and  not  form,  to  set  it  forth  for  information  of  the  court.  And  this 
is  a  case  of  some  singularity  upon  this  statute. 

But  now  to  the  case  in  question,  the  descent  to  Millington,  as 
cousin  and  heir,  is  the  substance  and  body  of  the  plea.  And  the 
rest  which  is  required  under,  viz.  is  bnt  a  specification  and  ex- 
plication of  the  same  thing  by  manner  how  it  is,  wdiich  is  not  the 
point  issuable,  but  the  general  descent  as  it  is  ruled  in  the  case  of 
challenge  for  cousinage.  14  Eliz.  Dyer,  319;  9  Edw.  IV.  3;  19 
Hen.  VIII.  7.  And  note  that  this  is  matter  of  fact  to  be  tried  by 
jury,  whether  it  were  pleaded  generally  or  specially.  So  it  is  not 
like  the  cases  of  not  showing  deeds,  or  the  like,  whereof  we  speak 
before,  whereupon  the  court  is  to  judge. 

Note  Wimbish  and  Talbois'  Case,  Plo.  38.  Wimbish  and  his  wife 
plead,  that  she  was  the  person  to  whom  the  interest  of  the  land  did 
belong,  after  Elizabeth  Talboys ;  and  the  opinion  of  the  court  was 
equal,  whether  that  were  well  or  not ;  yet  that  was  at  the  common 
law  before  this  statute,  but  indeed  the  plea  followed  the  words  of 
the  statute,  11  Hen.  VII.,  which  were  in  the  general;  whereupon 
they  replied,  that  maintained  the  plea,  and  that  was  less  certain 
than  this,  for  she  might  be  next  either  by  descent  or  purchase,  or  by 
reversion  or  rem. 

Now  where  it  was  objected  by  Warburton,  that  if  the  pedigree  had 
been  set  down,  the  plaintiff  might  have  pleaded  a  release  of  any  of 
those  ancestors,  or  pleaded  bastardy  in  any  of  them,  it  was  answered, 
that  the  traverse  of  the  descent  of  the  rent  to  Millington  must  have 
been  the  issue  in  both  cases,  and  would  have  served,  and  so  will, 
though  the  pedigree  be  not  set  down. 

Note,  that  as  a  demurrer  at  the  common  law  did  confess  all  mat- 
ters formally  pleaded,  so  now,  by  the  statute,  a  general  demurrer 
doth  confess  all  matters  pleaded,  though  unformally,  according  to 
the  forms  meant  by  this  law ;  for  such  forms  are  now  not  material, 
not  being  expressed  in  the  demurrer. 

23 


354  ^  CASES    ON    COMMON-LAW    PLEADING. 

'     ^'^^-         BOWxOELL   V.   PARSONS.  ^ 
In  the  King's  Bench,     1808. 
Reported  10  East's  Term  Reports,  359. 

Errors  in  form  defined. 

[The  first  count  in  the  declaration  is  here  omitted.]  The  second 
count  stated,  that  whereas  on  the  said  10th  day  of  May,  in  the  year 
aforesaid  [in  the  first  count,  1808],  at  Ware  aforesaid  [in  the  first 
count]  in  consideration  that  the  plaintiff,  at  the  request  of  the  de- 
fendant, had  purchased  of  him  a  certain  other  stack  of  hay,  at  the 
rate  of  £5  10s.  per  load,  to  be  therefore  paid  to  the  defendant,  the 
defendant  undertook  and  promised  the  plaintiff  to  deliver  to  and 
suHer  him  to  take  the  same,  when  the  defendant  shall  be  thereunto 
afterwards  requested.  And  the  plaintiff  avowed,  that  although  the 
defendant  did  afterwards  deliver  to  him  a  part,  to  wit,  one  load  of 
the  hay,  which  was  then  and  there  paid  for  by  the  plaintiff  at  the 
rate  aforesaid,  and  did  request  of  the  defendant  to  deliver  to  and 
suffer  him  to  take  the  same ;  yet  the  defendant,  not  regarding  his 
said  promise  and  undertaking,  did  not  nor  would,  although  duly 
requested,  deliver  to  or  permit  the  plaintiff  to  take  the  residue,  etc., 
but  so  to  do  wholly  refused  and  still  refuses  ;  and  by  means  of 
such  refusal,  etc.,  the  plaintiff  was  put  to  great  inconvenience  and 
expense,  to  wit,  at  Ware  aforesaid.  The  request  by  the  plaintiff  to 
the  defendant  to  deliver  the  residue  of  the  hay  was  laid  in  the  same 
manner  in  other  similar  counts. 

And  after  judgment  by  default,  and  a  writ  of  inquiry  executed,  it 
was  moved,  on  a  former  day,  to  arrest  the  judgment,  because  the 
request  was  not  specifically  alleged  with  a  venue,  as  it  ought  to  be 
where  a  request  in  fact  is  necessary  to  give  the  plaintiff  his  cause  of 
action ;  as  it  was  contended  to  be  in  this  case.  For  which  were  cited 
Peck  V.  Methold  [3  Bulst.  297],  and  Back  v.  Owen  [5  Term  Reports, 
409]. 

Espinasse  now  showed  cause. 

Cowley,  in  support  of  the  rule,  relied  on  the  cases  before  men- 
tioned [and  others]. 

Lord  Ellenborough,  Chief  Justice.  It  appears  to  me  that  the 
second  count  is  sufficient  to  sustain  judgment  for  the  plaintiff,  as 
well  as  the  first.  The  question  comes  now  to  be  considered  by  us 
after  the  statute  4  Ann.  c.  16,  for  the  amendment  of  the  law ;  the 
first  section  of  which  enacts  "  that  in  all  cases  where  any  demurrer 
shall  be  joined,  etc.,  the  judges  shall  proceed  and  give  judgment  ac- 


DEMURRERS.  355 

cording  as  the  very  right  of  the  cause  and  matter  in  law  shall  apjiear 
unto  them,  without  regarding  any  imperfection,  omission,  or  defect 
in  any  writ,  etc.,  declaration,  or  other  pleading,  etc.,  except  those 
only  which  the  party  demurring  shall  specially  and  particularly  set 
down  and  express  as  cause  of  demurrer ;  notwithstanding  that  such 
imperfection,  omission,  or  defect,  might  theretofore  have  been  taken 
for  matter  of  substance,  and  not  aided  by  the  statute  27  Eliz.  c.  5 ; 
so  as  sufficient  matter  appear  in  the  said  pleadings  upon  which  the 
court  may  give  judgment  according  to  the  very  right  of  the  cause." 
Now  it  is  admitted,  according  to  what  was  said  by  Lord  Mansfield 
in  Collins  w.  Gibbs,  that  this  being  a  motion  in  arrest  of  judgment  is 
to  be  considered  exactly  the  same  as  if  the  question  had  arisen  on 
general  demurrer.  Then  what  does  the  statute  say  upon  the  sub- 
ject ?  after  specifying-  the  want  of  several  matters  of  form,  of  which 
no  advantage  or  exception  sliall  be  taken,  it  proceeds  to  say  that 
"  the  court  shall  give  judgment  according  to  the  very  right  of  the 
cause  as  aforesaid,  without  regarding  any  such  imperfections,  omis- 
sions, or  defects,  or  any  other  matter  of  like  nature,  except  the 
same  shall  be  specifically  and  particularly  set  down  and  shown  for 
cause  of  demurrer."  Now  is  not  the  omission  to  repeat  a  venue 
(for  it  must  always  be  remembered  that  there  is  one  venue  well  laid 
in  the  declaration)  a  less  material  omission  than  the  want  of  alleg- 
ing prout  patet  per  recordiim,  where  a  record  is  pleaded;  which  is 
one  of  the  instances  specified  where  the  omission  shall  not  be  taken 
advantage  of  without  being  specially  shown  as  cause  of  demurrer ; 
for  that  is  an  omission  to  refer  to  that  by  which  alone  the  allega- 
tion is  to  be  proved ;  but  here  the  omission  is  of  that  which  is  mere 
form.  It  is  said  that  a  request  must  be  alleged,  and  so  it  is ;  but 
then  it  is  said  that  it  is  not  duly  alleged ;  the  imperfection  consists 
only  in  the  want  of  a  time  and  place,  where  a  venue  was  before  laid ; 
an  omission  by  no  means  of  equal  importance  with  several  of  those 
instanced  in  the  statute.  The  case  of  Back  v.  Owen  is  relied  on,  as 
having  been  decided  on  this  objection  since  the  statute ;  where  Mr. 
Justice  Buller  said,  "that  the  want  of  a  request  was  a  substantial 
defect  in  the  declaration,  and  that  where  it  was  necessary  to  allege 
a  special  request,  the  general  words,  though  often  requested,  would 
not  answer  the  purpose."  There  was  no  judgment,  however,  in  that 
case  ;  but  leave  was  given  to  amend,  and  the  cases  referred  to  in 
the  margin  of  the  report,  if  cited  by  him  as  supporting  that  position, 
are  all  before  the  statute  of  Anne.  Another  case  was  cited  of  Wall  is 
V.  Scott,  wliich  came  on  upon  general  demurrer  subsequent  to  that 
statute  ;  but  there  judgment  was  ultimately  given  for  the  plaintiff 
when  the  court  was  full.     And  though  one  of  the  judges  in  the  first 


356  CASES   ON   COMMON-LAW   PLEADING. 

instance  threw  out  an  opinion,  that  where  a  request  was  by  law 
necessary  (which  he  thought  it  was  not  in  that  instance),  the  gen- 
eral averment  would  not  be  sufficient,  but  it  must  be  particularly 
set  forth,  that  the  court  might  judge  whether  it  was  sufficient ;  yet 
it  is  to  be  observed,  that  the  healing  operation  of  the  statute  of  Anne 
was  not  presented  to  the  consideration  of  the  court.  Nor  was  it  so 
in  the  case  of  Back  v.  Owen ;  for  if  it  had,  I  think  the  objection 
there  must  have  been  overruled ;  because  it  was  not  only  an  objec- 
tion of  like  nature,  but  of  less  force  than  several  of  those  stated  in 
the  statute.  In  this  case  there  is  an  allegation  of  a  request,  which 
it  is  admitted  would  be  sufficient  if  tiine  and  place  were  laid  with 
it ;  and  I  am  of  opinion  that  the  want  of  those  since  the  statute  is 
not  a  sufficient  objection  in  arrest  of  judgment. 

Grose,  J.,  declared  himself  of  the  same  opinion. 

LeBlanc,  J.  .  .  .  Clearly  .  .  .  the  want  of  alleging  a  time  and 
place  to  the  request  is  only  matter  of  form,  and  is  not  sufficient  to 
arrest  the  judgment. 

Bayley,  J.,  of  the  same  opinion. 

Eule  discharged. 


STATE  V.   COVENHOVEN. 

Supreme  Court  of  New  Jersey,  September  Term.     1797. 

1  Halstead's  Eeports,  396,  at  401. 

[Extract  from  the  opinion  of  Kinsey,  Chief  Justice.]  "Another 
observation  may  here  be  made,  in  answer  to  what  was  dropped  by 
one  of  the  counsel,  on  the  argument.  It  was  said,  that  on  a  special 
demurrer  no  objection  can  be  taken  which  is  not  particularly  speci- 
fied in  the  demurrer,  and  therefore  that  the  prosecution  is  pre- 
cluded from  urging  some  of  the  objections  which  have  been  made. 
The  observation,  so  far  as  it  relates  to  fohual  defects,  is  correct,  and 
warranted  by  the  statute,  but  defects  of  substance  may  be  taken 
advantage  of  at  any  time  "  [tho'  unspecified]. 


DEMURRERS. 


y  357 


STATE  OF   MAINE   v.   PECK  AND   OTHERS. 

Supreme  Judicial  Court,  Maine.     1872. 
Reported  ix  60  Maine  Reports,  498. 
Every  special  demurrer  includes  a  general  demurrer. 

On  exceptions.  Debt  on  the  official  bond  of  Benjamin  D.  Peck, 
Treasurer  of  the  State  of  Maine,  dated  Jan.  28,  1858.  Writ  dated 
March  23,  1861. 

At  the  April  Term,  1868,  the  defendants  pleaded  full  performance 
of  the  covenants  and  condition  of  the  bond.  To  wliich  the  plaintiff 
replied,  that  the  principal  defendant  was  Treasurer  of  the  State  from 
Jan.  13,  1858,  to  Feb.  4, 1859,  and  that  on  Jan.  14, 1858,  and  divers 
other  days  and  times  between  that  day  and  Feb.  4,  1859,  the  said 
Peck,  as  said  treasurer,  received  divers  sums,  amounting  to  $39,231.19, 
belonging  to  the  State  of  Maine,  and  hath  not  accounted  for  any  part 
of  it.  To  this  replication  tlie  defendants  filed  a  special  demurrer, 
which  was  joined. 

(The  pleadings  may  be  found  58  Maine,  123.) 

May  30,  1871,  the  certificate  of  the  decision  of  the  law  court  was 
received  by  the  clerk  overruling  the  demurrer  and  adjudging  the 
replication  good.  On  the  13th  day  of  the  succeeding  October  Term, 
1871,  the  defendants  moved  for  leave  to  withdraw  the  demurrer 
without  the  consent  of  the  plaintiff  and  plead'  to  the  issue,  tender- 
ing therewith  a  rejoinder  alleging,  substantially,  that  Peck  did  ac- 
count for  and  pay  to  the  plaintiff  the  said  sums  of  money  by  the 
replication  alleged  not  to  have  been  paid,  and  tendered  an  issue  to 
the  country.  But  the  presiding  judge  overruled  the  motion  and 
declined  to  receive  the  rejoinder,  and  ordered  judgment  to  be  en- 
tered for  the  plaintiff  for  $150,000,  the  penalty  of  the  bond. 

T.  B.  Keed,  Attorney-General,  for  the  State. 

J.  &  E.  M.  Eand,  for  the  defendants. 

The  defendants  had  a  right  to  rejoin. 

Not  proper  to  enter  a  final  judgment*  for  the  plaintiff,  upon  over- 
ruling a  special  demurrer  to  a  replication. 

A  special  demurrer  does  not  admit  the  truth  of  all  facts  well 
pleaded,  as  is  the  case  with  general  demurrer. 

Even  general  demurrer  does  not  admit  damages,  —  an  averment 
that  defendant  owes  plaintiff  a  stated  sum  as  damages.  Millard  v. 
Baldwin. 

Nothing  in  R.  S.  c.  82,  s.  19,  deprives  defendants  of  right  to  rejoin. 


358  .    CASES    ON    COMMON-LAW   PLEADING. 

but  only  declares  that  a  demurrer  once  filed  shall  be  ruled  upon, 
unless  withdrawn  by  consent  before  ruling. 

Danforth,  J.  This  case  has  once  been  before  the  law  court  upon 
a  special  demurrer  to  the  plaintiff's  replication.     58  Maine,  123. 

The  demurrer  was  overruled,  the  replication  held  good,  and  the 
case  sent  back  for  final  judgment,  unless  the  defendants  were  per- 
mitted to  withdraw  their  demurrer  and  plead  anew  under  the  pro- 
visions of  the  R.  S.  c.  82,  s.  19.  At  the  term  subsequent  to  the 
announcement  of  the  decision,  the  defendants'  counsel  moved  for 
leave  to  withdraw  said  demurrer,  without  the  consent  of  the  plaintiff 
and  without  complying  with  the  provisions  of  the  statute,  and  to 
plead  to  the  issue.  This  motion  was  denied  and  judgment  ordered 
for  the  plaintiff.  To  this  the  defendants  except,  and  now  claim  the 
allowance  of  the  motion  as  of  right.  If  the  judgment  upon  the 
issue,  as  made  up,  should  have  been  respondeat  ouster,  the  defend- 
ants are  right  in  their  claim,  otherwise  not. 

Previous  to  the  several  acts  embodied  in  the  revision  above  cited, 
on  a  general  demurrer,  final  judgment  would  have  been  ordered  by 
the  law  court,  and  entered  as  of  the  preceding,  instead  of  at  the  fol- 
lowing term.  The  demurrer  was  not  to  a  plea  in  abatement,  but  to  a 
replication,  which  presented  the  full  merits  of  the  case.  The  party 
had  his  option  to  plead  or  demur.  By  electing  the  latter, "  he  shall 
be  taken  to  admit  that  he  has  no  ground  for  denial  or  traverse." 
Stephen  on  PI.  143. 

The  result  of  this  principle  is  the  well-established  rule, "  that  a  de- 
murrer admits  all  such  matters  of  fact  as  are  sufficiently  pleaded." 
It  must  be  conceded  that  the  replication  contains  all  the  facts  neces- 
sary to  maintain  the  plaintiff's  case,  and  the  court  have  decided  that 
it  is  sufficient  in  form.  Hence  a  final  judgment  must  necessarily 
follow.  The  authorities  are  to  the  same  effect.  Stephen,  in  his  work 
on  pleading,  treating  of  judgments  for  the  plaintiff,  says,  on  pages  104, 
105  :  "  If  it  be  an  issue  in  law,  arising  on  a  dilatory  plea,  the  judgment 
is  only  that  the  defendant  answer  over.  .  .  .  Upon  all  other  issues  in 
law,  and  in  general  all  issues  of  fact,  the  judgment  is,  that  the  plain- 
tiff' recover."  Also  in  note  on  page  144 :  "  On  demurrer  to  any  plead- 
ings which  go  to  the  action,  the  judgment  for  either  party  is  the  same 
as  it  would  have  been  on  an  issue  of  fact,  joined  upon  the  same  plead- 
ing and  found  in  favor  of  the  same  party."  Clearwater  v.  Meredith, 
1  Wallace,  25,43;  McKeen  v.  Parker,  ^51  Maine,  389;  McAllister 
V.  Clark,  33  Conn.  258;  and  in  Parlin  v.  Macomber,  5  Maine,  413; 
Washington  v.  Eames,  6  Allen,  417,  final  judgment  was  ordered  by 
the  law  court.  But  without  denying  the  correctness  of  these  prin- 
ciples when  applied  to  a  general  demurrer,  it  is  contended  that  they 


DEMURKERS.  359 

are  not  applicable  to  a  special  one,  and  it  is  said  that  none  of  the 
authorities  so  lay  down  the  law.  While  this  may  be  true,  it  is  also 
true  that  in  Parlin  v.  Macomber,  above  cited,  the  court  applied  the 
law  to  a  special  demurrer,  and  also  in  Washington  v.  Eames,  thougli 
in  Massachusetts,  under  their  Practice  Act,  all  demurrers  must  be 
special.  No  authority  has  been  cited,  or  fallen  under  notice,  in 
which  any  distinction  between  the  two  kinds  of  demurrer,  in  re- 
spect to  the  judgment,  has  been  alluded  to,  which,  to  say  the  least, 
is  a  little  singular,  if  any  such  difference  exists. 

Nor  are  we  able  to  perceive  any  such  distinction  from  the  prin- 
ciples involved. 

Every  special  demurrer  includes  a  general  one,  for  under  the  for- 
mer "  the  party  may,  on  the  argument,  not  only  take  advantage  of 
the  faults  which  his  demurrer  specifies,  but,  also,  of  all  such  objec- 
tions in  substance,  as  regarding  the  very  right  of  the  cause,  as  the 
law  does  not  require  to  be  particularly  set  down."  Stephen  on  PI. 
141,  142;  Bouvier's  Law  Diet.,  "Demurrer."  In  the  one  just  as 
much  as  in  the  other  the  party  has  his  option  to  plead  or  denmr, 
and  must  be  equally  bound  by  his  election.  But  one  answer,  unless 
by  leave  of  court,  can  be  made  to  the  plea,  and  if  that  is  overruled, 
it  must  stand  as  true.  A  special  demurrer  raises  a  question  of  law 
just  as  much  as  a  general  one,  and  there  is  no  exception  to  the 
rule  as  laid  down,  that  where  there  is  an  issue  of  law  upon  a  plea 
"  which  goes  to  the  action  "  the  judgment  will  be  final. 

To  these  principles  of  law  the  statute  adds  its  mandate.  E.  S.  c. 
82,  s.  19.  The  statute  gives  the  parties  some  rights  which  did  not 
previously  exist,  and,  for  the  purpose  of  enabling  them  to  secure 
those  rights,  the  action  is  to  stand  upon  the  docket  until  the  term 
following  the  certificate  of  decision.  But  these  rights  must  be  as- 
serted within  the  time  and  in  the  manner  specified,  otherwise  they 
are  waived,  and  the  case  ended.  No  distinction  is  made  between  a 
special  and  general  demurrer,  but  the  word  used  comprehends  both. 
In  this  case  the  new  pleadings  were  not  filed  on  the  second  day  of 
the  term,  nor  do  the  costs  appear  to  have  been  paid.  Hence,  in  ac- 
cordance with  the  statute,  judgment  must  be  entered. 

Appleton,  C.  J. ;  Cutting,  Walton,  and  Dickerson,  J.  J.,  concurred. 
Tapley  did  not  concur. 


360  CASES   ON    COMMON-LAW    PLEADING. 


; 


3.    The  Effect  of  Demurrers  in  Opening  up  the  Record. 

MATHEWSOX   v.  WELLER   AND   OTHERS.^ 
Cases  in  the  Supreme  Court,  New  York.    May,  1846. 
Reported  3  Desio,  52. 
A  demurrer  opens  up  the  entire  record. 

Demurrer  to  a  surrejoinder.  The  declaration  was  in  trespass  for 
taking  a  pair  of  horses.  Plea,  a  justification  of  the  seizure  under  an 
execution  issued  by  a  justice  of  tlie  peace  on  a  judgment  against  the 
plaintiff  in  favor  of  Weller,  Haynes,  and  Johnson,  three  of  the  de- 
fendants, the  other  defendant  being  a  constable.  It  states  the 
recovery  of  the  judgment  on  the  29th  day  of  August,  1842, 
without  stating  any  facts  to  show,  or  making  any  averment  that 
the  justice  had  jurisdiction.  Eeplication,  that  the  plaintiff  was  a 
householder,  and  that  the  horses  were  his  necessary  team,  and  were 
of  less  value  than  $150  (to  show  that  the  property  was  exempt  from 
execution  under  the  Act  of  1842,  p.  193,  s.  1).  Eejoinder,  that  the 
judgment  on  which  the  execution  issued,  by  virtue  of  which  the 
horses  were  taken,  was  rendered  for  the  purchase  money  of  a  stove 
sold  by  the  three  defendants  who  recovered  the  judgment  to  the 
present  plaintiff,  and  by  him  kept  for  use.  Surrejoinder,  that  the 
plaintif!"  purchased  the  stove  mentioned  in  the  rejoinder  of  the  three 
defendants,  Weller,  Haynes,  and  Johnson,  before  the  passage  of  the 
exemption  act  of  1842,  to  wit,  on  the  10th  day  of  October,  1840,  and 
not  afterwards.     Verification.     Demurrer  and  joinder. 

By  the  court,  Jewett,  J.  It  is  not  denied  that  the  plea  is  bad  in 
substance  ;  and  it  is  well  settled  that  the  judgment  must  be  against 
the  party  who  has  committed  the  first  substantial  fault  in  pleading 
(Mercein  v.  Smith,  2  Hill,  210).  If  this  were  otherwise,  the  defend- 
ant would  prevail,  because  the  surrejoinder  shows  that  the  debt  for 
which  the  judgment  was  rendered  was  contracted  prior  to  the  pas- 
sage of  the  Act  of  1842,  and  therefore,  according  to  the  case  of 
Quackenbush  v.  Danks  (1  Denio,  128),  that  act  has  no  application 
to  tlie  case. 
*    N.  Hill,  Jr.,  for  the  defendants. 

D.  Wright,  for  the  plaintiff. 

Judgment  for  the  plaintiff. 

1  The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


DEMUKRERS.  /  3G1 

ANONYMOUS. 

In  the  Commox  Pleas.     1763. 
Reported  2  Wilson,  150. 
And  judgment  is  giv^en  against  him  who  made  the  first  error  in  pleading. 

Debt  on  a  bond  with  condition  for  the  payment  of  a  certain  sum 
of  money  on  a  certain  day ;  defendant  pleads  payment  before  the 
day  ;  plaintiff  replies  that  the  defendant  did  not  pay  before  the  day  ; 
et  de  hoc  ponit  se  super  j^atriam  ;  defendant  demurs,  and  plaintiff 
joins  in  demurrer. 

Nares,  Serjeant,  for  the  defendant  admitted  that  the  plea  at  first 
was  bad,  but  insisted  the  plaintiff  had  made  it  good  by  replying  and 
tendering  issue  upon  it,  or  that  if  the  issue  was  immaterial  there 
ought  to  be  a  repleader. 

Hewitt,  Serjeant,  contra.  This  is  a  case  where  defendant  has  not 
joined  issue  to  the  country,  but  has  put  himself  upon  the  judgment 
of  the  court ;  and  thougli  the  replication  be  bad,  yet  whenever  the 
case  is  upon  a  demurrer,  the  court  looks  for  the  first  fault,  which  is 
in  the  plea  here ;  and  therefore  judgment  ought  to  be  for  the  plain- 
tiff;  and  of  that  opinion  was  the  court,  and  gave  judgment  for  the 
plaintiff. 

ANONYMOUS. 
In  the  King's  Bench.     1701. 
Reported  2  Salkeld,  519. 
Unless,  indeed,  that  error  has  been  cured  by  pleading  over. 

If  a  man  pleads  over,  he  shall  never  take  advantage  of  any  slip 
committed  in  the  pleading  on  the  other  side,  which  he  could  not 
take  advantage  of  upon  a  general  demurrer.  Per  Holt,  C.  J.,  see 
6  Mod.  136. 

COLE,   EXECUTOR  OF  ANN  HILL,  v.  ANDREW  SMALLEY.^ 

New  JEK'iEY  Supreme  Couut,  February  Term.     1856. 

1  Butcher's  Reports,  374. 

Action  by  an  executor.  Plea  in  abatement  for  the  nonjoinder  of 
another  executor.     The  plea  avers  that  the  testatrix  appointed  the 

1  So  much  of  the  case  as  does  not  relate  to  the  effect  of  demurrers  iu  opening  up 
the  record  is  omitted. 


362  CASES    ON   COMMON-LAW    PLEADING. 

plaintiff  and  one  I.  V.  executors  of  her  will ;  that  the  said  I.  Y., 
as  executor,  administered  upon  the  estate,  and  that  he  is  still  living. 
The  plaintiff  replies,  that  the  said  I.  V.  did  not  administer  upon  the 
estate.     To  this  replication  the  defendant  demurs. 

The  cause  was  argued  before  the  Chief  Justice,  and  Elmer,  Potts, 
and  Haines,  justices. 

J.  W.  Miller,  for  the  defendant,  in  support  of  the  demurrer. 

G.  H.  Brown,  for  jjlaintiff,  contra  [contended  among  other  things, 
that],  if  the  replication  is  defective,  the  plaintiff  is  nevertheless  en- 
titled to  judgment,  because  the  defendant's  plea  is  bad  for  uncer- 
tainty.    Gould's  PI.  83,  ch.  3,  s.  54. 

The  Chief  Justice.  If,  moreover,  the  plea  be  erroneous  .  .  .  for 
uncertainty,  it  is  a  defect  in  form,  which  could  only  be  taken 
advantage  of  on  special  demurrer,  and  is  aided  by  pleading  over. 
A  demurrer  reaches  back,  and  attaches  only  to  substantial  defects 
in  the  previous  pleadings.     Gould's  PI.  474 

The  demurrant  is  entitled  to  judgment. 


HASTROP  V.   HASTINGS. 

In  the  King's  Bench.     1692. 

Reported  in  1  Salkeld,  212. 

Or  unless  the  plea  be  one  in  abatement,  behind  which  the  demurrer  cannot 
go- 
In  an  action  upon  the  case  for  beer  and  wages,  the  defendant 
pleaded  in  abatement,  et 'pet.  judicium  de  hilla,  et  quod  hilla prcedict 
cassetur  ;  for  incertainty  in  the  declaration  [:]  upon  demurrer,  the 
defendant's  counsel  insisted  upon  many  faults  in  the  declaration. 
Et  per  cur.  The  defendant  shall  not  take  advantage  of  mistakes 
in  the  declaration  upon  a  plea  in  abatement ;  but  if  he  would  do 
that,  he  must  demur  to  the  declaration,  per  quod  a  respondeas  ouster 
was  awarded. 


.     POWYS,   EXECUTOR   OF   LLOYD,  v.    JOHN   WILLIAMS. 
In  the  Common  Pleas.     1698. 
Reported  Lutwyche,  1601. 
\_Extract/rom  the  opinion  ofTreby,  C.  J.,  at  1604.] 

Concerning  the  judgment  in  the  principal  case,  see  the  case  of 
Bellasis  &  Hesper  before  in  this  book,  where  in  assumpsit  on  a  bill 


DEMURREIiS.  363 

of  exchange  the  defendant  pleaded  in  abatement  that  the  action  was 
brought  before  the  bill  was  payable  ;  and  in  tlie  debate  of  that  case 
an  exception  was  taken  to  the  declaration ;  but  the  opinion  of  the 
court  was,  that  no  advantage  could  be  taken  of  a  fault  in  the  decla- 
ration on  a  demurrer  to  a  plea  in  abatement. 

RICH    (SIR   PETER)    v.   PILKINGTON,   LORD   MAYOR 
OF   LONDON. 

In  the  King's  Bench.     1692. 
Reported  Cakthew,  171. 

Action  on  the  case  for  a  false  return  to  a  mandamus,  in  which 
action  the  plaintiff'  declared,  that  he  was  lawfully  elected  into  the 
office  of  Chamberlain  of  London,  and  that  the  defendant  refused  to 
admit  him  into  that  office ;  whereupon  he  brought  a  mandamus 
directed  to  the  defendant  and  the  aldermen,  etc.,  and  the  defendant 
returned,  that  the  "^lointi^  nuyiquam  fuit  electus  to  the  said  office, 
uhi  revera  he  was  lawfully  elected  by  the  majority,  etc. 

The  defendant  pleaded  in  abatement,  that  the  mayor  and  alder- 
men of  London  are  a  corporation,  and  that  all  of  them  in  their 
judicial  capacity  in  a  court  of  aldermen  jointly  made  the  said  re- 
turn ;  and  thereupon  prayed  judgment  of  the  bill  brought  against 
the  mayor  alone. 

And  upon  a  demurrer,  to  this  plea  it  was  adjudged  ill,  for  this  ac- 
tion is  founded  on  a  tort,  and  therefore  it  may  be  either  joint  or 
several  at  the  election  of  the  party,  as  in  trespass,  etc.  .  .  . 

Then  the  counsel  for  the  defendant  would  have  taken  exceptions 
to  the  declaration,  but  the  court  would  not  allow  it ;  because  here 
was  a  plea  in  abatement,  to  which  the  plaintiff  might  have  de- 
murred ;  and  for  that  reason  he  [the  defendant]  shall  never  take 
exceptions  to  the  declaration ;  to  which  the  counsel  replied,  that  it 
appeared  by  the  plaintiff"s  own  showing  that  he  had  no  cause  of 
action  at  the  time  when  this  action  was  brought. 

For  the  return  of  the  pluries  mandamus  is  laid  to  be  after  tlie 
beginning  of  Michaelmas  Term,  and  the  memorandum  of  the  bill  is 
entered  generally  of  that  term  ;  and  that  this  was  such  a  fault  that 
they  might  show  as  Amicus  Curice ;  and  thereupon  the  plaintiff' 
prayed  to  amend,  which  was  granted,  and  judgment  was  given ; 
quod  respondeat  ouster. 


364  CASES    ON   COMMON-LAW    PLEADING. 

DEAN   V.   BOYD   FOR   BERRY. 

Court  of  Appeals  of  Kentucky,  Fall  Term.     1839. 

Reported  9  Dana,  169. 

For  a  plea  in  abatement  is  to  the  writ,  and  the  demurrer  cannot  go  back  of 
the  declaration  to  attack  a  plea  to  the  writ. 

From  the  Circuit  Court  for  Fleming  County. 

The  Chief  Justice  dehvered  the  opinion  of  the  court.^ 

In  an  action  of  debt,  brought  in  the  name  of  John  Boyd,  for  the 
use  of  Itobert  Berry,  against  Joseph  Dean  - —  in  which  the  declara- 
tion averred  that  the  bond  sued  on  had  been  executed  by  Joseph 
Dean  to  the  "  said  Joseph  Dean,"  and  had  afterwards  been  sold  by 
Boyd  to  Berry  —  Dean  filed  a  plea  in  abatement,  averring  that 
Boyd  was  a  non-resident  of  Kentucky,  and  had  failed  to  file,  accord- 
ins  to  the  statute,  a  bond  securing  the  costs. 

The  circuit  judge,  having  sustained  a  demurrer  to  the  plea,  ren- 
dered judgment  against  Dean,  for  the  debt,  on  his  refusing  to  plead 
over.  .  .  .  We  are  of  the  opinion  that  the  plea,  as  filed,  is  not  suffi- 
cient for  abating  the  writ.  .  .  . 

The  plaintiff  in  error  insists,  however,  that  the  declaration  is 
radically  defective,  and  that,  therefore,  even  if  the  plea  be  insuffi- 
cient; the  circuit  judge  erred  in  sustaining  the  demurrer  to  it. 

The  declaration  is,  in  our  opinion,  insufficient  for  maintaining  the 
action ;  for  though  it  may  not  be  improbable  that  there  is  a  mis- 
take in  the  averment  that  the  bond  was  executed  by  Joseph  Dean  to 
"  the  said  Joseph  Dean ; "  yet,  nevertheless,  we  cannot,  without  any 
clue  whatever,  decide  judicially,  either  that  the  bond  is  not  so 
written,  or  that  John  Boyd  is  or  was  intended  to  be  the  obligee. 
The  averment,  that  John  Boyd  sold  the  bond  to  Robert  Berry,  can- 
not help  the  declaration  ;  for  that  fact  does  not  show  that  Boyd  was 
the  obligee,  or  had  legal  authority  to  transfer  the  obligation. 

Nor  can  the  exhibition,  in  the  record,  of  a  bond  of  the  same  date 
for  the  same  amount,  payable  on  its  face  to  John  Boyd,  be  entitled 
to  any  influence  ;  because,  as  no  oyer  was  either  granted  or  craved, 
that  bond  is  not  legally  before  us,  and  cannot,  therefore,  be  judicially 
noticed. 

But,  though  the  declaration  thus  appears  to  be  insufficient,  still 
the  demurrer  to  the  plea  did  not  bring  up  the  count,  or  authorize 

1  A  part  of  the  opinion  not  here  relevant  is  omitted. 


I 


DEMURRERS.  365 

the  circuit  court  to  consider  it;  because  a  plea  in  abatement  applies 
to  the  writ  only. 

Wherefore  the  circuit  judge  did  not  err  in  sustaining  the  demurrer 
to  the  plea  in  abatement. 

But,  as  the  declaration  is  insufficient,  the  court  erred  in  rendering 
judgment  for  the  debt  sought  to  be  recovered. 

And,  therefore,  the  judgment  must  be  reversed,  and  the  cause 
remanded  with  instructions  to  give  leave  to  amend  the  declaration, 
if  the  plaintiff  shall  ask  such  leave ;  otherwise  to  dismiss  tiie  suit. 

DAVIES   V.   PENTON. 

In  the  King's  Bench.     1827. 

Reported  in  6  Barnewall  &  Cresswell,  216. 

Nor  can  a  demurrer  to  a  defective  pleading  in  one  record  attack  a  defect 
in  another  record. 

Declaration  stated  articles  of  agreement  of  the  23d  December, 
1823,  made  between  plaintiff  and  defendant,  which  recited  that  de- 
fendant for  many  years  then  past  carried  on  the  practice  and  profes- 
sion of  a  surgeon,  apothecary,  and  accoucheur,  and  had  established  a 
considerable  connection  in  such  business ;  and  that,  having  deter- 
mined to  withdraw  from  the  same,  he  had  agreed  with  the  plaintiff 
for  the  sale  to  him  of  all  his  then  stock,  and  of  the  goodwill  of  his 
said  business ;  and  also  to  demise  to  him  his  house  in  Great  Surrey 
Street,  in  which  the  business  was  then  carried  on,  upon  the  terms 
following;  that  is  to  say,  the  sum  of  £800  to  be  paid  for  the  good- 
will of  the  business  of  a  surgeon,  apothecary,  and  accoucheur,  and 
the  influence  and  recommendation  thereinafter  agreed  to  be  criven 
by  defendant  unto  and  in  favor  of  plaintiff,  and  the  lease  of  the 
house  in  Great  Surrey  Street,  for  the  term  of  nineteen  years  and 
ona-quarter,  subject  to  the  yearly  rent  of  £80 ;  and  the  stock  in 
trade  to  be  taken  and  purchased  by  plaintiff  at  a  fair  valuation  ; 
and  that  in  part  pursuance  of  the  agreement  defendant  had  accord- 
ingly demised  to  plaintiff  the  said  messuage  or  tenement,  with  all 
and  singular  the  appurtenances,  for  the  term  of  nineteen  years  and 
one-quarter  of  a  year,  wanting  two  days,  from  the  25th  of  December, 
1823,  at  the  yearly  rent  of  £80.  The  articles  of  agreement  then 
stated  that  defendant,  in  further  pursuance  of  the  said  agreement, 
and  for  and  in  consideration  of  £400  to  the  defendant  in  hand  paid 
by  the  plaintiff  at  or  before  the  signing  of  the  articles  of  agreement, 
and  for  and  in  consideration  of  the  further  sum  of  £400  (being  the 
remainder  of  the  said  sum  of  £800  consideration  money  therein- 


366  CASES    ON    COMMON-LAAV   PLEADING. 

before  mentioned),  secured  to  be  paid  to  defendant  by  a  bill  of  ex- 
change, bearing  even  date  with  the  agreement,  drawn  by  defendant 
upon  and  accepted  by  plaintitl'  for  the  said  sum  of  £400,  and  pay- 
able twelve  months  after  date  ;  and  of  the  further  sum  of  £170  4s. 
(being  the  ascertained  value  of  the  stock  in  trade,  goods,  fixtures, 
and  effects  used  in  and  about  the  said  business  or  profession,  as, 
agreed  upon  between  plaintiff  and  defendant),  also  secured  to  be 
paid  to  defendant  by  a  certain  other  bill  of  exchange,  bearing  even 
date  with  the  said  agreement,  drawn  by  defendant  upon  and  ac- 

,cepted  by  plaintiff  for  the  said  sum  of  £170  4s.,  and  payable  at  two 
months  after  the  date  thereof,  agreed  to  and  with  plaintiff  in  man- 
ner following;  that  is  to  say,  that  he,  defendant,  should  permit 

•plaintiff  to  have,  use,  and  exercise  the  said  business,  practice,  and 
profession  of  a  surgeon,  apothecary,  and  accoucheur,  from  24th 
December,  1823,  and  to  carry  on  the  same  in  and  upon  the  same 
house  and  premises,  and  in  the  same  way  and  manner  as  defendant 
had  been  used  and  accustomed  to  do;  and  to  have, receive,  and  take 
the  whole  of  the  profits  and  produce  of  such  practice  and  profes- 
sion, to  and  for  his  own  use  and  benefit ;  and  that  defendant  should 
use  his  best  endeavors  and  influence  with  all  his  patients  and  friends 
to  prevail  upon  them  to  employ  plaintiff  in  the  way  of  his  said 
practice  and  business.  And  plaintiff  did  thereby  agree  to  and  with 
defendant  that  he,  plaintiff,  would  well  and  truly  pay  and  discharge 
the  said  two  several  bills  so  drawn  upon  and  accepted  by  him, 
plaintiff,  for  the  sums  of  £400  and  £170  4s.  as  aforesaid  unto  de- 
fendant, as  and  when  the  said  bills  of  exchange  respectively  became 
due  and  payable  ;  and  the  defendant  did  by  the  said  articles  of 
agreement,  lastly,  promise  and  agree  to  and  with  plaintiff,  that  he, 
defendant,  should  not,  nor  would  at  any  time  thereafter,  use,  exer- 
cise, and  carry  on  the  art,  business,  or  profession  of  a  surgeon, 
apothecary,  or  accoucheur,  within  the  distance  of  five  miles  from 
the  said  messuage,  being  No.  12  in  Great  Surrey  Street  aforesaid,  for 
his  own  private  benefit  or  emolument,  in  any  manner  howsoever; 
and  for  the  true  performance  of  all  and  singular  the  agreements 
aforesaid,  each  of  them,  defendant  and  plaintiff,  did  thereby  bind 
and  oblige  himself  unto  the  other  of  them,  in  the  penal  sum  of 
£500,  to  be  recoverable  for  breach  of  the  said  agreement,  in  any 
court  or  courts  of  law,  as  and  by  way  of  liquidated  damages.  The 
declaration  then  stated  mutual  promises.  Breach,  that  the  defend- 
ant did  use,  exercise,  and  carry  on  the  business  or  profession  of  a 
surgeon,  apothecary,  and  accoucheur,  within  the  distance  of  five 
miles  from  the  said  messuage.  Plea,  that  plaintiff"  did  not  well  and 
truly  pay  and  discharge  the  said  two  several  bills  of  exchange, 


DEMURRERS.  367 

according  to  the  form  and  effect  of  the  articles  of  agreement  in  that 
behalf,  but  wholly  neglected  and  refused  so  to  do,  and  therein  failed 
and  made  default;  and  thereupon  and  according  to  the  tenor  and 
effect,  true  intent,  and  meaning  of  the  articles  of  agreement,  the 
plaintiff"  forfeited  and  became  liable  to  pay  to  defendant  the  said 
sum  of  £500  in  the  articles  of  agreement  mentioned,  as  and  by  way 
of  liquidated  damages.  The  plea  then  alleged  further,  that  the 
plaintiff  at  the  commencement  of  the  suit  was  indebted  to  the  de- 
fendant in  the  further  sum  of  £500  for  work  and  labor,  etc.  Repli- 
cation (except  as  to  so  much  of  the  plea  as  related  to  the  penal  sum 
of  £500  first  mentioned),  that  plaintiff  before  and  on  the  23d 
December,  1823,  was  a  trader,  etc. ;  and  that  in  October,  1824,  he 
became  bankrupt,  and  on  the  27th  May,  1825,  obtained  his  certifi- 
cate. Demurrer  to  so  much  of  the  plea  as  related  to  the  sum  of 
£500  first  mentioned. 

The  Solicitor-General  in  support  of  the  demurrer.^ 

Chitty,  contra.  But  it  appears  that  the  plaintiff  has  no  right  to 
sue ;  for  the  replication  shows  that  after  the  agreement  he  became 
bankrupt,  and  consequently  the  right  of  action  vested  in  his  assignees. 
[Bayley,  J,  The  plea  of  set-off  goes  to  the  whole  declaration,  the 
replication  of  the  plaintiff's  bankruptcy  only  to  part  of  the  plea. 
The  demurrer  is  to  the  residue  ;  and  upon  this  demurrer  the  defend- 
ant cannot  avail  himself  of  the  replication.] 

Abbott,  C.  J.  Then  as  to  the  other  point  it  is  said  that  the 
plaintiff'  upon  certain  parts  of  the  record  has  set  forth  his  bank- 
ruptcy, and  that  as  it  appears  upon  the  whole  record  that  his 
assignees  are  entitled  to  the  benefit  of  the  contract  stated  in  the 
declaration,  the  plaintiff  cannot  have  judgment  upon  this  demurrer. 
But  in  considering  what  judgment  we  are  to  pronounce  upon  this 
demurrer,  we  are  bound  to  look  only  to  that  part  of  the  record  upon 
which  the  demurrer  arises,  and  not  at  the  other  collateral  parts  of 
the  record  not  connected  with  it ;  and,  looking  to  that  part  of  the 
record  upon  which  the  demurrer  arises,  we  are  of  opinion  that  the 
plaintiff  is  entitled  to  the  judgment  of  the  court. 

Bayley,  J.  As  to  the  other  point,  in  arguing  the  question 
whether  the  defendant  or  the  plaintiff  is  entitled  to  judgment  upon 
this  demurrer,  neither  of  them  has  a  right  to  have  recourse  to  any 
parts  of  the  record  not  connected  with  that  upon  which  the  de- 
murrer arises.  If  the  defendant  had  intended  to  rely  on  the  bank- 
ruptcy as  a  bar  to  the  plaintiff's  right  to  recover,  he  should  have 
pleaded  it ;  and  the  plaintiff  in  that  case  might  have  replied  that  the 
assignees  had  repudiated  the  contract. 

^  Only  so  much  of  the  case  is  given  as  relates  to  the  effect  of  the  demurrer.  —  Ed. 


368  CASES   ON    COMMON-LAW   PLEADING. 

Holroyd,  J.  I  entirely  agree  with  my  brother  Bayley  that  the 
defendant  cannot  claim  in  aid  the  other  parts  of  the  record,  to 
show  that  the  plaintiff  is  not  entitled  to  judgment  upon  the  de- 
murrer. 

Littledale,  J,  Then  it  is  said  that  the  plaintiff  has  no  right  of 
action,  because  it  appears  vipon  the  record  that  he  had  become 
bankrupt.  As  to  one  sum,  the  plaintiff  says,  "  that  he  has  obtained 
his  certificate."  Then  he  demurs  to  the  other  parts  of  the  plea. 
But  supposing  anything  turned  on  the  question  of  bankruptcy,  we 
should  be  bound  to  decide  on  the  plea  and  demurrer  following  one 
another.  We  must  treat  the  count,  plea,  and  replication,  and  the 
count,  plea,  and  demurrer,  as  distinct  records,  and  give  judgment 
upon  each  without  reference  to  the  other. 

Judgment  for  the  plaintiff. 

THE   AUBURN  AND   OWASCO   CANAL   CO.   v.  LEITCH. 

Supreme  Court,  New  York.     January,  1847. 
Keported  in  4  Denio,  65. 

Demurrer  to  a  replication.  The  declaration  was  in  assumpsit  for 
the  recovery  of  certain  instalments  due  upon  shares  of  the  capital 
stock  of  the  plaintiff's  corporation,  subscribed  for  by  the  defendant. 
Pleas,  1.  Non-assumpsit.  2.  Nul  tiel  corporation.  Eeplication  to 
the  second  plea,  setting  out  the  act  incorporating  the  plaintiff,  to- 
gether with  certain  acts  amending  and  continuing  that  act.  The 
defendant  demurred  to  the  replication,  and  the  plaintiff  joined  in 
demurrer. 

W.  H.  Seward,  for  the  defendant. 

B.  D.  Noxon,  for-  the  plaintiff. 

By  the  court,  Bronson,  C.  J.  The  defendant  insists  that  the 
declaration  is  bad  on  general  demurrer.  [The  Chief  Justice  then  ex- 
amined the  pleadings,  and  came  to  the  conclusion  that  the  declara- 
tion was  substantially  defective ;  and  then  proceeded  as  follows :] 
But  it  is  said,  that  as  the  defendant  pleaded  non-assumpsit  as  well 
as  nul  tiel  corporation,  he  cannot  upon  this  demurrer  go  back  and 
attack  the  declaration ;  and  several  cases  have  been  cited  to  sustain 
that  position.  But  it  will  be  found  on  examination  that  the  point 
has  never  been  directly  and  necessarily  adjudged.  The  doctrine 
was  first  started  in  Wheeler  v.  Curtis,  11  Wend.  653,  and  was  there 
supposed  to  result  from  the  well-established  rule  that  the  defendant 
cannot  both  plead  and  demur  to  the  same  count.  It  was  said  that 
the  defendant  should  not  be  allowed  to  do  indirectly  what  he  would 


DEMURRERS.  369 

have  no  right  to  do  directly.  But  the  question  whether  the  declara- 
tion was  good  or  bad  was  not  decided.  The  cause  went  off  upon 
other  grounds  ;  and  the  point  in  question  was  not  necessarily  settled. 
In  Dearborn  v.  Kent,  14  Wend.  183,  the  dictum  in  the  first  case  was 
repeated ;  but  it  was  expressly  held  that  the  declaration  was  suffi- 
cient ;  so  that  it  was  wholly  unnecessary  to  inquire  whether  the  de- 
fendant was  at  liberty  to  make  the  question  or  not.  Eussell  v. 
Kogers,  15  Wend.  351,  is  the  next  case ;  and  there  it  was  not  decided 
whether  the  declaration  was  good  or  bad.  It  was  apparently  good ; 
so  that  the  point  in  question  did  not  necessarily  arise.  In  Miller  v. 
Maxwell,  16  Wend.  9,  this  doctrine  was  mentioned  for  the  last 
time ;  and  the  same  learned  judge  who  first  started  it  went  a  great 
way  towards  knocking  it  on  the  head.  In  that  case  the  defendant 
pleaded  the  general  issue,  and  two  special  pleas.  The  plaintiff  de- 
murred to  the  special  })leas,  and  they  were  adjudged  bad ;  but  the 
defendant  was  allowed  to  go  back  and  attack  the  declaration  ;  and 
judgment  was  given  against  the  plaintiff  for  the  insufficiency  of  that 
pleading.  Now,  although  the  learned  judge  who  delivered  the  opin- 
ion of  the  court  took  a  distinction  between  a  defect  in  the  declara- 
tion which  would  not  be  cured  by  a  verdict,  and  one  which  could 
only  be  reached  by  a  demurrer,  the  principle  of  that  case  is  directly 
opposed  to  the  dicta  which  had  preceded  it. 

It  is  quite  clear  that  the  defendant  cannot  both  plead  and  demur 
to  the  same  count.  And  it  is  equally  clear  that,  at  the  common 
law,  he  could  not  have  two  pleas  to  the  same  count.  Indeed,  the 
two  things,  though  stated  in  different  words,  are  only  parts  of  one 
common-law  rule  ;  to  wit,  that  the  defendant  cannot  make  two 
answers  to  the  same  pleading.  The  statute  of  4  and  5  Anne,  c.  16, 
was  made  to  remedy  this  inconvenience  ;  and  it  allowed  the  defend- 
ant, with  the  leave  of  the  court,  to  plead  as  many  several  matters 
as  he  should  think  necessary  for  his  defence.  With  us,  leave  of  the 
court  is  no  longer  necessary.  2  E.  S.  352,  s.  9.  The  statute  does 
not  say  that  the  defendant  may  both  plead  and  demur ;  and  conse- 
quently he  cannot  make  two  such  answers.  But  lie  may  jilead  two 
or  more  pleas ;  some  of  which  may  terminate  in  issues  of  fact,  to 
be  tried  by  a  jury;  while  others  may  result  in  issues  of  law,  to  be 
determined  by  the  court.  And  whenever  we  come  to  a  demurrer, 
whether  it  be  to  the  plea,  replication,  rejoinder,  or  still  further 
onward,  the  rule  is  to  give  judgment  against  the  party  who  com- 
mitted the  first  fault  in  pleading,  if  the  fault  be  such  as  would 
make  the  pleading  l)ad  on  general  demurrer.  This  rule  has  always 
prevailed.  It  was  the  rule  prior  to  the  statute  of  Anne ;  and  to  say 
that  the  defendant,  because  he  pleads  two  pleas,  one  of  which  re- 

24 


370  CASES   ON    COMMOxV-LAW    PLEADING. 

suits  in  a  demurrer,  cannot  go  back  and  attack  the  declaration, 
would  be  to  deprive  him  of  a  portion  of  the  privilege  which  the 
legislature  intended  to  confer.  He  cannot  plead  and  demur  at  the 
same  time,  because  the  common  law  forbids  it ;  and  the  statute  does 
not  allow  it.  But  he  may  plead  two  pleas ;  and  he  takes  the  right 
w*Mi  all  its  legitimate  consequences,  one  of  which  is,  that  whenever 
there  comes  a  demurrer  upon  either  of  the  two  lines  of  pleading,  he 
may  run  back  upon  that  line  to  see  which  party  committed  the  first 
fault;  and  against  that  party  judgment  will  be  rendered.  Aside 
from  the  dicta  in  question,  there  is  not  a  shadow  of  authority,  either 
here  or  in  England,  for  a  different  doctrine. 

Although  it  seems  that  no  case  upon  this  point  has  found  its  way 
into  the  books,  I  well  remember  that  since  the  decision  in  Miller  v. 
Maxwell,  16  Wend.  9,  it  has  been  several  times  announced  from 
the  bench  that  in  a  case  like  tliis  the  defendant  was  at  liberty  to  go 
back  and  attack  the  declaration ;  and  I  think  the  point  has  been 
more  than  once  directly  decided.  I  know  that  the  late  Mr.  Justice 
Cowen  entertained  and  expressed  that  opinion,  as  I  did  myself ;  and 
it  is  also  the  opinion  of  my  present  associates.  I  would  not  lightly 
overrule  so  much  as  a  mere  dictum,  if  it  was  of  the  nature  of  a  rule 
of  property,  and  had  stood  long  enough  to  become  one.  But  this 
is  not  a  question  of  that  kind. 

Judgment  for  the  defendant.^ 

CAMPBELL   V.    ST.  JOHN. 

In  the  King's  Bench.     1694. 

Reported  1  Salkeld,  219. 

In  trover  for  a  box  and  290  pieces  argenti,  the  defendant  de- 
murred to  the  declaration,  and  the  plaintiff  demurred  to  the  defend- 
ant's demurrer,  and  concluded  ^  hoc  paratus  est  verificare ;  the 
defendant  maintained  his  demurrer,  and  put  the  matter  upon  the 
court.  And  first,  the  court  held  that  trover  would  lie  for  plate 
generally.      Vide  Style,  224,  264.^     Secondly,  That  all  is  discontin- 

1  "Onlinarily  a  demurrer  to  a  pleading  which  is  held  good  cannot  be  carried  back 
to  a  previous  defective  pleading.  Dearborn  v.  Kent,  14  Wend.  183.  But  if  the  decla- 
ration is  materially  and  fatally  defective,  the  demurrer  will  be  carried  back.  People 
V.  City  of  Spring  Valley,  129  111.  169;  Fort  Dearborn  Lodge  v.  Klein,  11.5  111.  177. 
It  is  generally  said  that  a  demurrer  will  not  be  carried  back  of  the  general  issue. 
Dearborn  v.  Kent,  14  Wend.  183;  Compton  v.  People,  86  111.  176.  But  this  position 
would  not  seem  tenable  when  the  declaration  is  substantially  defective  so  as  not  to 
be  good  after  verdict.  Auburn  &  O.  Canal  Co.  v.  Leitcli,  4  Den.  65;  Shaw  v.  Tobias, 
3  N.  Y.  188."     Stephen,  Pleading,  Andrew's  1st  ed.  224. 

2  "In  the  infancy  of  this  action,  it  was  held  necessary,  in  a  declaration  in  trover,  to 
ascertain  the  goods  which  were  the  subjects  of  dispute,  witli  as  much  certainty  and 


DEMUREERS.  371 

ued  by  the  plaintiffs  not  joining  in  demurrer,  but  demurring  upon 
the  defendant's  demurrer ;  for  there  is  no  difference  between  plead- 
ing over  when  issue  is  offered,  and  not  joining  in  demurrer,  but 
pleading  over ;  both  are  alike,  and  make  a  discontinuance.  / 

W 

HAITON  AND   OTHERS,  ASSIGNEES,  v.  JEFFREYS. 

Ix  THE  King's  Bench.     1715. 

10  Modern  Reports,  *280. 

The  court  was  moved  for  leave  to  plead  a  plea,  and  demur  to  the 
declaration  at  the  same  time,  upon  the  4  Anne,  c.  16,  s.  1,  the  words 
of  which  are,  "  That  it  shall  be  lawful  for  any  defendant,  or  tenant 
in  any  action  or  suit,  or  for  any  plaintiff  in  replevin,  in  any  court 
of  record,  with  the  leave  of  the  same  court,  to  plead  as  many  sev- 
eral matters  thereto,  as  he  shall  think  necessary  for  his  defence : 
provided  nevertheless,  that  if  any  such  matter  shall,  upon  a  de- 
murrer joined,  be  judged  insufficient,  costs,  etc." 

The  court.  The  words  of  the  Act  of  Parliament  are,  "  that  it 
shall  be  lawful  to  plead  as  many  several  matters,  etc."  Now,  a  de- 
murrer is  so  far  from  being  a  plea  that  it  is  an  excuse  for  not 
pleading.  Here  you  plead,  and  at  the  same  time  pray  that  you 
may  not  plead.  The  word  "  matter  "  imports  a  possibility  that  the 
other  party  may  demur  to  it ;  but  there  can  be  no  demurrer  upon  a 
demurrer.     This  was  never  attempted  before. 

accuracy,  as  was  required  in  an  action  of  detinue  or  replevin.  Therefore  where  the 
declaration  was  for  a  parcel  of  lings,  witliout  specifying  the  quantity  it  contained, 
though  there  was  a  verdict  and  judgment  in  favor  of  the  plaintiff,  it  was  reversed  upon 
error.  Gramvel  v.  Riiobotham,  Cro.  Eliz.  8(55.  So  trover  for  200  weights  of  lead, 
and  200  weigiits  of  brass,  without  sliovviiig  the  quantity,  was  held  too  uncertain  after 
verdict.  Powell  v.  Hopkins,  Sty.  247.  Walter  v.  Farrier,  S.  P.  Latch.  216.  .  .  .  But 
the  law  does  not  now  require  so  much  precision  and  certainty  in  the  dcscrij)tion  of  the 
goods,  as  formerly;  for  if  they  are  described  according  to  (common  acceptation,  it  is 
sufficient.  Tlius  trover  for  400  'ends'  of  deal  boards  was  adjudged  to  be  sufficient, 
because  workmen  call  all  such  pieces  of  boards,  as  are  not  fit  for  wainscoting,  floor- 
ing, and  the  like,  'ends';  and  being  a  particular  term  well  understood,  is  a  proper 
denomination  for  all  short  pieces  of  boards.  Knight  v.  Barker,  2  Ld.  Haym.  1219; 
11  Mod.  06,  s.  c.  Greater  certainty,  however,  and  accuracy  in  the  description  of  the 
things  demanded,  is  still  re(iuircd  in  detinue,  because  tlie  plaintiff  may  desire  to  re- 
cover the  specific  tilings  themselves,  which  can  only  be  done  in  this  action.  Kettle  v. 
Bromsall,  Willes  Rep.  120.  But  with  respect  to  replevin,  ...  it  seems  to  be  now 
settled  that  a  declaration  being  certain  to  a  general  intent,  is  sufficient  after  verdict. 
Rast.  570  b;  Dalt.  Sher.  274."     2  Williams  Saunders,  74,  note. 


372  CASES   ON    COMMON-LAW    PLEADING. 


What  are  Demurrers  to  Eindence  and  what  are  Special 
Verdicts. 


(a)     Demurrers  to  Evidence. 

WRIGHT   V.   PAUL   PINDAR. 

In  the  King's  Bench.     1647. 

Reported  Aletx,  18. 

In  a  trover  and  conversion  brought  by  an  administrator;  upon 
not  guilty  pleaded,  the  defendant  upon  the  evidence  confesses,  that 
he  did  convert  them  to  his  own  use ;  but  further  saith,  that  the 
intestate  was  indebted  to  the  king,  and  that  18  May,  14  Car.,  it 
was  found  by  Inquisition,  that  he  died  possessed  of  the  goods  in 
question ;  which  being  returned,  a  venditioni  exponas  was  awarded 
to  the  sheriff,  who  by  virtue  thereof  sold  them  to  the  defendant. 
And  to  prove  this  the  defendant  showed  the  warrant  of  the  treasurer, 
and  the  office  book  in  the  Exchequer,  and  the  entry  of  the  Inquisi- 
tion, and  the  venditioni  exponas  in  the  clerk's  book ;  to  which  the 
plaintiff  saith,  that  the  matter  alleged  is  not  sufficient  to  prove- the 
defendant  not  guilty  ;  and  that  there  was  no  such  writ  of  venditioni 
exponas.  And  the  defendant  saith,  that  the  matter  is  sufficient, 
and  that  there  was  such  a  writ.  And  it  was  resolved,  that  he  that 
demurs  upon  the  evidence  ought  to  confess  the  whole  matter  of 
fact  to  be  true,  and  not  refer  that  to  the  judgment  of  the  court. 
And  if  the  matter  of  fact  be  uncertainly  alleged,  or  that  it  be 
doubtful  whether  it  be  true  or  no,  because  offered  to  be  proved  only 
by  presumptions  and  probabilities,  and  the  other  party  will  demur 
thereupon,  he  that  alleges  this  matter  cannot  join  in  demurrer  with 
him,  but  ought  to  pray  the  judgment  of  the  court,  that  he  may  not 
be  admitted  to  his  demurrer,  unless  he  wiU  confess  the  matter  of 
fact  to  be  true.  And  for  that  the  defendant  did  not  so  in  this  case, 
both  parties  have  misbehaved  themselves,  and  the  court  cannot  pro- 
ceed to  judgment.  But  it  was  clearly  agreed,  that  upon  evidence 
the  court  for  reasonable  cause,  at  their  discretion,  may  permit  any 
matter  to  be  shown  to  prove  a  record.  Com.  411  b.  And  the  opinion 
of  the  court  was,  that  an  alias  venire  facias  should  be  awarded,  and 
not  a  venire  de  novo,  because  no  verdict  was  given. 


DEMURRERS.  o73 


(b)     Special  Verdict. 

"  A  more  common,  because  more  convenient,  course  than  [de- 
murrer to  the  evidence]  to  determine  the  legal  effect  of  the  evi- 
dence, is  to  obtain  from  the  jury  a  special  verdict  in  lieu  of  that 
general  one,  of  which  the  form  has  already  been  described.  For 
the  jury  have  an  option,  instead  of  finding  the  negative  or  affirma- 
tive of  the  issue,  as  in  a  general  verdict,  to  find  all  the  facts  of  the 
case  as  disclosed  upon  the  evidence  before  them,  and  after  so  set- 
ting them  forth  to  say,  in  effect,  '  that  they  are  ignorant,  in  point 
of  law,  upon  which  side  they  ought,  upon  these  facts,  to  find  the 
issue ;  that  if,  upon  the  whole  matter,  the  court  shall  be  of  opinion 
that  the  issue  is  proved  for  the  plaintiff,  they  find  for  the  plaintiff 
accordingly,  and  assess  the  damages  at  such  a  sum,  etc. ;  but  if  the 
court  are  of  an  opposite  opinion,  then  vice  versa.'  This  form  of 
finding  is  called  a  special  verdict."  Stephen,  Pleading,  Andrews' 
1st  ed.,  180. 

GENERAL   DEMURRER. 

C.  D.  )  And  the  said  C  D.  by  E.  F.  his  attorney,  comes  and 
ats.  >  defends  the  wrong  and  injury,  when,  &c.,  and  says  tliat  the 
A.  B.  )  said  declaration  (or  "  the  said  first  count  of  the  said  declara- 
tion ")  and  tlie  matters  therein  contained  in  manner  and  form,  as  the 
same  are  above  stated  and  set  forth,  are  not  sufficient  in  law  for  the 
said  A.  B.  to  liave  or  maintain  his  aforesaid  action  thereof  against  him, 
the  said  C.  D.  and  that  he  tlie  said  C.  D.  is  not  bound  by  the  law  of 
the  land  to  answer  the  same,  and  this  he  is  ready  to  verify  ;  wherefore, 
for  want  of  a  sufficient  declaration  or  ("  first  count  of  the  said  declara- 
tion ")  in  this  behalf,  the  said  C.  D.  pra3S  judgment,  and  that  the  said 
A.  B.  may  be  barred  from  having  or  maintaining  his  aforesaid  action 
thereof  against  him,  &c.     2  Chit.  PI.  678. 

SPECIAL  DEMURRER. 

When  the  causes  of  demurrer  are  stated,  as  is  in  general  advisable, 
proceed  as  in  the  above  precedent  to  the  end,  and  then  as  follows : 
And  the  said  C.  D  ,  according  to  the  form  of  the  statute  in  such  case 
made  and  provided,  states,  and  shows  to  the  court  here,  the  following 
causes  of  demurrer  to  the  said  declaration,  or  "  to  the  said  first  count 
of  the  said  declaration,"  that  is  to  sa\',  that,  &c.  (here  state  the  par- 
ticular causes,  and  conclude  thus :  and  also  that  the  said  declaration, 
or  "  first  count  of  the  said  declaration  ")  is  in  other  respects  uncertain, 
informal,  and  insufficient,  &c.     2  Chit.  PI.  678. 


CHAPTER  VIII. 

DILATORY   PLEAS. 

"  The  more  general  division  of  pleas  is,  .  .  .  first,  pleas  dilatory ; 
secondly,  pleas  peremptory.  Of  the  former  description  are  pleas 
to  the  jurisdiction  ;  to  the  disability  of  the  person ;  to  the  count, 
or  declaration  [obsolete]  and  to  the  writ ;  of  the  latter,  or  peremp- 
tory kind,  and  which  lead  to  an  issue  which  finally  settles  the 
dispute,  are  leas  in  bar  of  the  action."  Chitty's  Pleading,  Vol.  I.  p. 
*457. 

"The  law  has  prescribed  and  settled  the  order  of  pleading  which 
the  defendant  is  to  pursue,  and  although  it  has  been  objected  that 
as  regards  pleas  in  abatement  the  division  is  more  subtle  than 
useful,  yet  as  regulating  in  some  respects  the  forms  and  con- 
clusions of  the  pleas,  and  the  right  to  plead  another  plea  in  abate- 
ment in  some  cases  after  judgment  against  the  defendant  of 
respondeas  ouster,  it  is  deemed  here  expedient  to  adhere  to  the 
ancient  order,  especially  as  no  preferable  arrangement  has  been 
suggested,  viz.: 

1st.   To  the  jurisdiction  of  the  court. 
2dly.   To  the  disability,  etc.,  of  the  person. 
J  1st.    Of  the  plaintiff. 
I  2dly.    Of  the  defendant. 
3dly.   To  the  count  or  declaration  [obsolete]. 
4thly.   To  the  writ. 

1st.   To  the  form  of  the  writ. 

1st.   Matter  apparent  on  the  face  of  it. 
2dly.   Matter  dehors. 
2dly.   To  the  action  of  the  writ. 
5thly.   To  the  action  itself  in  bar  thereof." 

Chitty's  Pleading,  Vol.  I.  p.  *456. 


DILATORY   PLEAS.  375 

/ 

(a)    To  the  Jurisdiction. 
DOULSON  V.    MATTHEWS   AND   ANOTHER. ^ 

In  the  King's  Bench.     1792. 
Keported  4  Term  Reports,  503. 

This  was  an  action  of  trespass  for  entering  the  plaintiffs  dwelling- 
house  in  Canada,  and  expelling  him  ;  there  was  another  count  for 
taking  his  goods  ;  but  as  there  was  no  proof  to  support  the  second 
count,  the  only  question  was,  whether  an  action  of  trespass  could 
be  brought  in  this  country  for  the  injury  stated  in  the  first  count. 
Lord  Kenyon,  at  the  trial,  was  clearly  of  opinion  that  the  cause  of 
action  stated  in  that  count  was  local.  And  as  the  plaintiff  could 
not  support  the  second  count,  he  was  nonsuited. 

Erskine  now  moved  to  set  aside  that  nonsuit ;  observing,  that 
this  was  not  an  action  to  recover  the  land,  but  merely  a  personal 
action  to  recover  a  satisfaction  in  damages,  which  was  transitory 
and  might  be  tried  here. 

BuUer,  J.  It  is  now  too  late  for  us  to  inquire  whether  it  were 
wise  and  politic  to  make  a  distinction  between  transitory  and  local 
actions  ;  it  is  sufficient  for  the  courts  that  the  law  has  settled  the 
distinction,  and  that  an  action  quare  clausum  f  regit  is  local.  We 
may  try  actions  here  which  are  in  their  nature  transitory,  though 
arising  out  of  a  transaction  abroad,  but  not  such  as  are  in  their 
nature  local. 

Rule  refused. 


/ 


JEREMIAH   LAWRENCE  v.   DANIEL  SMITH    AND 
ABRAHAM    RUSSELL,  JUN. 

Supreme  Judicial  Court  of  Massachusetts.     September 
Term,  1809. 

Reported  5  Massachusetts,  362. 

This  action  was  assumpsit,  in  which  the  defendants  are  described 
as  of  the  city,  county,  and  State  of  New  York.  The  service  en- 
dorsed is  an  attachment  of  nominal  property  [a  chip]  of  the  defend- 
ants, and  the  leaving  of  a  summons  with  their  attorney,  William  P. 
Walker. 

1  A  part  of  Erskine's  argument,  and  also  Ch.  J.  Kenvou's  opinion,  are  omitted. 
—  Ed. 


376  CASES    ON    COMMON-LAW    TLEADING. 

The  defendants,  by  their  said  attorney,  plead  to  the  jurisdiction 
of  the  court,  because  they  are  inhabitants  of  the  state  of  New  York, 
and  at  no  time  have  been  resident  within  this  state,  and  that  no 
estate  of  theirs  has  been  attached  on  this  writ. 

To  this  plea  the  plaintiff  demurs,  and  the  defendants,  by  the  same 
attorney,  join  in  demurrer. 

By  the  court.  As  a  plea  in  abatement  to  the  jurisdiction,  the 
plea  is  unquestionably  bad,  as  it  gives  jurisdiction  to  no  other  court 
of  this  state.  But  the  Court  will  not  proceed  in  the  suit,  as  it  does 
not  appear  that  either  of  the  defendants,  or  any  estate  of  theirs,  is 
within  the  jurisdiction  of  the  commonwealth. 

Let  an  entry  be  made  that  the  plea  is  adjudged  bad  ;  and  let  a 
further  entry  be  made  that,  for  the  reasons  aforesaid,  all  further 
proceedings  stay. 

Hurbert,  for  the  plaintiffs. 

Dewey,  for  the  defendants. 

[Confer  Statutes  of  1797,  c.  50,  s.  1,  Massachusetts.] 

(b)    To  the  Disability  of  the  Person. 

PLUMPTON   V.   HEADLAM. 

The  Transactions  of  the  High  Court  of  Chancery. 

Reported  Tothill's  Chancery  Reports,  74. 

Plumpton  contra  Headlam,  demurrer  because  excommunicated, 
overruled,  about  4  Car. 

MORRIS   V.  OWEN. 

The  Transactions  of  the  High  Court  of  Chancery. 

Reported  Tothill's  Chancery  Reports,  76. 

Morris  contra  Owen,  a  demurrer,  because  the  plaintiff  was  out- 
lawed, the  defendant  ordered  to  answer,  10  Jac.  C.  B.  (fo.  457). 

DOCKMINIQUE  v.  DAVENANT. 

In  the  Queen's  Bench.     1704. 
Reported  1  Salkeld,  220. 

Per  curiam.  If  a  defendant  demur  in  abatement,  the  court  will 
notwithstanding  give  a  final  judgment,  because  there  cannot  be  a 
demurrer  in  abatement ;  for  if  the  matter  of  abatement  be  extrin- 


DILATORY   PLEAS.  377 

sic,  the  defendant  must  plead  it;  if  intrinsic,  the  ^urt  will  take 
notice  of  it  themselves. 


ANONYMOUS. 

In  the  King's  Bench.     1751. 

Reported  1   Wilson,  302. 

The  defendant  pleads  in  abatement  that  there  is  no  such  person 
as  the  plaintiff  1  in  reruni  natura,  the  plaintiff  replies  that  there  is, 
viz.  at  Westminster ;  defendant  demurs,  plaintiff  joins  in  demurrer 
and  prays  judgment  and  his  damages,  which  being  in  chief  is 
wrong,  for  it  ought  to  be  that  he  may  answer  over.  Per  curiam. 
Let  it  stand  over  with  leave  to  the  plaintiff'  to  move  to  amend  on 
payment  of  costs. 

LADY   FAULKLAND   v.   STANION. 

In  the  King's  Bench.     1700. 

Reported  12  Modern,  400. 

In  debt  upon  a  bond,  it  was  pleaded  in  bar,  that  in  a  former  ac- 
tion upon  that  bond  the  defendant  had  pleaded  the  late  statute  of 
the  king  laying  taxes  upon  bonds  for  security  of  money,  and  that 
none  should  recover  such  debts  if  they  had  not  taxed  the  same  ; 
and  that  upon  that  plea  the  plaintiff'  was  barred. 

It  was  objected,  that  the  statute  was  only  a  temporary  law,  and 
now  expired ;  and  therefore  the  impediments  being  removed,  the 
plaintiff'  should  recover,  and  compared  it  to  the  case  of  excom- 
mengement  pleaded,  where  the  judgment  is  remaneat  loqiiela  sine 
die  quousque,  etc.,  which  is  but  a  temporary  plea,  by  which  the 
parties  are  put  out  of  court,  but  may  be  brought  in  by  a  re-sum- 
mons or  re-attachment;  but  where  outlawry  is  pleaded  in  abate- 
ment after  pardon  or  reversal  thereof,  the  party  must  begin  de  novo. 

But  by  Holt,  Chief  Justice,  Here  the  defendant  had  a  good  plea 
when  the  first  action  commenced,  and  time  shall  not  wear  it  out ; 
and  he  said,  that  Co.  Lit.  128  b  and  135  b  is  to  be  understood  upon 
this  diversity,  when  the  cause  of  action  accrues  to  the  plaintiff  at  a 
time  at  which  he  is  under  the  disability  of  an  outlawry ;  there  the 
plea  of  outlawry  in  abatement  shall  quite  overthrow  the  writ,  and 
after  removal  thereof  he  must  begin  de  novo  ;  but  where  the  dis- 
ability of  outlawry  comes  after  the  cause  of  action  accrued,  there 

^  That  is,  a  man  without  a  name. 


378  CASES   ON   COMMON-LAW    PLEADING. 

the  plea  of  outlawry  is  only  a  temporary  disability  which  does  not 
abate  the  writ,  but  is  only  quousque :  and  after  removal  thereof  he 
may  re-continue  the  action  by  re-summons,  etc. 

(c)    To  the   Count  or  Declaration. 

JOSEPH   HOLE   V.  JOHN   FINCH. 

In  the  King's  Bench.     1769. 

Reported  2  Wilson,  393.1 

Curia :  Formerly,  when  the  whole  original  writ  was  spread  in 
the  same  roll  with  the  count  thereupon,  if  a  variance  appeared  be- 
tween the  writ  and  count,  the  defendant  might  have  taken  advan- 
tage thereof,  either  by  motion  in  arrest  of  judgment,  writ  of  error, 
plea  in  abatement,  or  demurrer.  Cro.  Eliz.  185,  198,  330,  829 ;  2 
Lutw.  1181,  s.  P.  But  afterwards  it  was  determined  that  if  the  de- 
fendant will  take  advantage  of  a  variance  between  the  writ  and 
count,  he  must  demand  oi/er  of  the  writ,  and  show  it  to  the  court. 
4  Mod.  246 ;  Ellery  v.  Hicks  and  Ux' ;  2  Salk.  658,  701 ;  6  Mod. 
303.  And  a  case  in  manuscript  of  Gross  v.  Lee,  which  was  re- 
plevin by  writ  for  taking  his  cattle,  the  count  was  for  taking  a 
gray  horse,  there  was  a  demurrer  for  the  variance,  but  judgment 
was  for  the  plaintiff.  Parker,  C.  J.,  cited  Salk.  701,  and  the  court 
held  that  defendant  cannot  take  advantage  of  a  variance  between 
the  writ  and  count  without  showing  oi/er  of  the  writ. 

(d)    To  the   Writ. 

1.    Misnomer. 

MESTAER  AND   ANOTHER    QUI  TAM,   ETC.,  v.   HERTZ. 

In  the  King's  Bench.     1815. 

Reported  3  Maule  and  Selwtn,  450. 

Lord  Ellenborough,  C.  J.  [in  the  above  case,  said],  "  In  what  sit- 
uation do  these  plaintiffs  stand  ?  They  have  described  the  defend- 
ant by  a  wrong  name,  having  perhaps  heard  him  called  by  that 
name  once  or  twice.  But  that  would  not  be  sufficient  to  maintain 
an  issue  upon  the  misnomer;  because  whether  his  name  be  so  or 
not,  depends  not  upon  one  or  two  occasions,  but  on  a  plurality  of 
times  that  he  may  have  been  so  called.     Perhaps  they  might  have 

1  Extract  from  the  opinion  of  the  court.     The  statement  of  facts  is  omitted. 


DILATORY   PLI':AS.  379 

doubts  upon  a  matter  not  lying  within  their  own  cognizance,  but 
they  venture  to  call  him  into  court  by  a  particular  name.  The  de- 
fendant appears  and  being  in  court  pleads  a  misnomer,  and  then 
the  plain titis,  having  something  given  them  to  amend  by,  apply  for 
leave  to  amend,  instead  of  encountering  the  peril  of  an  issue  which 
probably  would  have  turned  out  against  them,  and  would  have  been 
conclusive.  .  .  .  Now  here  the  cause  of  action  is  precisely  the  same, 
whether  the  name  of  the  defendant  be  Moses  Isaac,  or  Maurice 
Jacob.  The  court,  in  allowing  the  plaintiffs  to  amend,  makes  com- 
pensation to  the  defendant  by  giving  him  the  costs  of  his  plea,  and 
to  the  plaintiffs  they  afford  an  opportunity  of  not  being  totally  ex- 
cluded from  the  merits.  Considering  the  extent  to  which  amend- 
ments of  this  sort  have  been  allowed,  the  present  seems  to  me  to 
come  within  the  practice,  and  the  principle  laid  down  by  Lord 
Hardwicke." 


HAWORTH  V.  SPRAGGS. 
In  thk  King's  Bench.  1800. 
Eeported  8  Term  Reports,  515. 

The  defendant  was  sued  in  an  action  of  assumpsit  by  the  name 
of  John  Spraggs ;  to  which  he  pleaded  in  abatement  as  follows : 
"And  he  against  whom  the  plaintiff"  hath  exhibited  his  bill  by  the 
name  of  John  Spraggs  in  his  proper  person  comes  and  pleads  that 
he  was  baptized  by  the  name  of  James,  to  wit,  at,  etc.,  and  by  the 
Christian  name  of  James  hath  always  since  his  baptism  hitherto 
been  called  and  known,  etc. ;  "  traversing  in  the  usual  form  that  he 
was  ever  known  by  the  Christian  name  of  John.  The  plaintiff  de- 
murred, and  assigned  for  special  causes  that  by  the  manner  of  plead- 
ing the  said  James  had  by  his  said  plea  admitted  himself  to  be  the 
person  named  the  defendant  in  and  by  the  aforesaid  bill  of  the 
plaintiff,  and  also  that  the  said  James  had  not  begun  his  said  plea 
in  the  words  following,  viz.  "and  James  Spraggs  against  whom," 
etc.,  in  the  usual  and  known  mode  of  pleading  a  plea  a  misnomer  in 
abatement,  etc. 

Manley,  in  support  of  the  demurrer. 

Reader,  contra. 

The  court  said  at  any  rate  the  plea  was  defective,  in  not  setting 
out  the  surname  as  well  as  the  christian  name  of  the  defendant. 
That  such  a  plea  must  inform  the  plaintiff  what  is  the  true  name 
of  the  defendant :  whereas,  here  the  defendant  corrected  the  plain- 
tiff's mistake  as  to  his  christian  name,  but  neither  admitted  that  he 


380  CASES   ON    COMMON-LAW   PLEADING. 

was  rightly  designated  by  his  surname,  nor  called  himself  by  any 
other  surname. 

Judgment  respondeat  ouster. 


REX   V.  THOMAS   FOSTER. 

Reported  Rdssell  and  Ryan,  412. 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Maid- 
stone Lent  assizes  in  the  year  1820,  for  committing  an  unnatural 
crime  on  one  John  Whyneard. 

The  person  on  whom  this  crime  was  convicted  said  that  his 
name  was  spelt  Winyard,  but  it  was  pronounced  Winnyard. 

The  prisoner  was  convicted,  and  received  sentence  of  death ;  but 
execution  was  respited,  in  order  that  the  opinion  of  The  Judges 
might  be  taken  on  the  objection  that  the  name  of  the  witness  was 
misspelt. 

In  Easter  Term,  1820,  The  Judges  took  this  case  into  considera- 
tion, and  held  the  conviction  right. 

REGINA  V.  JAMES. 

Central  Criminal  Court.     1847. 

Reported  2  Cox  Criminal  Cases,  227. 

The  indictment  charged  the  prisoner  with  assaulting  and  stealing 
from  a  female  "  two  rings,  etc.,  the  property  of  Jules  Henry  Steiner." 
The  female  was  the  wife  of  the  owner  of  the  property,  and  stated 
that,  to  the  best  of  her  knowledge,  her  husband's  name  was  Henry 
Jules  Steiner,  and  not  Jules  Henry  Steiner. 

Pollock,  C.  B.,  held  the  misnomer  fatal,  and  the  prisoner  was 
acquitted. 

REGINA  V.   DAVIS. 

Crown  Cases  Reserved.     1851. 

Reported  5  Cox  Criminal  Cases,  237. 

The  case  was  reserved  by  the  Dorsetshire  Sessions. 

The  prisoner  was  indicted  for  stealing  the  goods  of  Darius  Chris- 
topher. The  evidence  proved  the  prosecutor's  name  to  be  Tryus 
Christopher.  The  chairman  ruled  that,  in  Dorsetshire,  Darius  and 
Tryus  were  idem  sonantia,  but  requested  the  opinion  of  the  judges 
upon  the  correctness  of  that  ruling.     When  this  case  came  on  to 


DILATORY   PLEAS.  381 

be  heard,  on  the  8th  February,  before  Jervis,  C.  J.,  Alderson,  B., 
Williams,  J.,  Piatt,  B.,  and  Martin,  B.,  the  court  intimated  that  it 
was  a  question  for  the  jury,  and  directed  the  case  to  be  sent  back, 
in  order  that  it  might  be  stated  whether  the  question  had  been  left 
to  the  jury.  The  case  was  now  returned,  with  a  statement  that 
the  question  of  variance  was  not  left  to  the  jury. 

Lord  Campbell,  C.  J.  —  This  conviction  must  be  reversed.  If  it 
is  put  as  a  matter  of  law,  it  is  quite  impossible  for  this  court  to  say 
that  the  two  words  are  idem  sonaritia.  The  objection  is  said  to 
have  been  taken  in  arrest  of  judgment ;  but  I  have  never  heard  of 
such  a  ground  for  arresting  the  judgment  since  the  great  case  of 
Stradley  v.  Styles. 

Coleridge,  J.  No  doubt  a  Dorsetshire  jury  would  have  thought 
the  words  idem  sonantia. 

Conviction  reversed. 

[^xt)'act  from^ 

REGINA  V.   WILSON. 

Crown  Case  Reserved.     1848. 

Reported  2  Cox  Criminal  Cases,  426. 

Per  W.  B.  Brett,  for  the  prisoner.  "  Upon  the  point  of  vari- 
ance the  law  is  clear ;  and  the  only  question  is,  whether  the  Court 
can  say  that  the  two  names  are  so  identical  in  sound  that  no  person 
could  be  misled." 


JONES   V.  MACQUILLIN. 

In  the  King's  Bench.     1793. 
Reported  5  Term  Reports,  195. 


/ 


The  declaration  was  against  the  defendant  by  the  christian  name 
of  James  Eichard ;  to  which  there  was  a  plea  in  abatement  that  he 
was  baptized  by  the  name  of  Richard  James,  and  not  James  Richard, 
and  had  always  since  been  known  by  the  christian  name  of  Richard 
James,  etc.     To  which  there  was  a  general  demurrer,  and  joinder. 

Shepherd,  in  support  of  the  demurrer,  said,  that  the  plea  was  in- 
sufficient, because  it  did  not  deny  that  the  defendant  had  been 
christened  by  the  names  of  James  and  of  Richard,  though  not  in  the 
order  in  which  the  plaintiff  had  stated  them.  If  it  were  to  be  taken 
all  as  one  name,  there  might  be  some  color  for  the  objection ;  but 
the  Court  would  take  notice  that  there  were  two  distinct  names,  by 


382  CASES    ON    COMMON-LAW    PLEADING. 

both  of  which  it  appeared  that  the  defendant  had  been  baptized. 
And  this  would  have  appeared  still  more  strongly  if  the  plea  had 
been  drawn  in  the  usual  form ;  for  it  should  have  stated  that  the 
defendant  had  not  been  baptized  by  the  names  of  James  and  Rich- 
ard, which  would  clearly  not  have  availed.     But 

Per  curiam.  The  objection  cannot  be  got  over :  the  misplacing 
of  the  names  makes  them  as  different  from  the  real  names  as  the 
substitution  of  any  other  instead  of  these. 

Judgment  for  the  defendant. 


AHITBOL   V.   BENIDITTO. 

\-s.  THE  King's  Bench.     1810. 

Reported  2  Taunton,  40L 

But  in  this  case,  where  Aaron  Beniditto  had  been  sued  and  ar- 
rested by  the  name  of  Aaron  Benedetto,  .  .  .  the  court  said  it  was 
idem  sonans,  and  refused  the  rule  \nui,  because  of  no  misnomer]. 

2.    Autre  Action  Pendant. 

BILLER   V.   ELLIOT. 

The  Transactions  of  the  High  Court  of  Chancery. 

Reported  Tothill's  Chancery  Reports,  73. 

Biller  contra  Elliot,  demurrer,  because  the  matter  was  depending 
in  the  Exchequer,  before  the  bill  [,]  overruled,  Jan.  35  Eiiz. 

/  SPARRY'S   CASE.^ 

V  In  the  Exchequer.     1590. 

Reported  5  Coke,  61  a. 

A  man  shall  not%)e  twice  vexed  for  one  and  the  same  cause. 

Israel  Owen  brought  an  action  on  the  case  against  James  Sparry, 
of  trover  of  a  certain  quantity  of  cotton  yarn,  and  selling  it  to  per- 
sons unknown,  and  conversion  to  his  own  use ;  the  defendant 
pleaded,  that  the  plaintiff  had  another  action  on  the  case  depending 
in  the  King's  Bench  for  the  same  trover  and  conversion  of  the  same 
goods  ;  and  this  suit  is  prosecuted  pending  the  other  ;  and  demanded 

1  Part  of  the  opiuion  is  omitted. 


DILATORY    PLEAS.  383 

judgment  of  the  bill :  and  thereupon  the  plaintiff  did  demur  in  law. 
And  it  was  resolved  by  Sir  Koger  Manwood,  Chief  Baron,  and  the 
whole  Court  of  Exchequer,  that  the  bill  should  abate  for  two  reasons. 

1.  Because  by  the  rule  of  law  a  man  shall  not  be  twice  vexed  for 
one  and  the  same  cause,  nemo  debet  bis  vexari,  si  constet  curice  quod 
sit  pro  una  &  eadem  causa.  But  the  old  difference  in  our  old 
books  is  between  writs  which  comprehend  certainty,  as  in  debt, 
detinue,  etc.,  and  writs  which  comprehend  no  certainty,  as  assize, 
trespass,  etc.  For  it  is  true  that  in  writs  (be  they  real,  personal, 
or  mixt),  which  are  certain,  it  is  a  good  plea  to  say,  that  the  writ  is 
brought  pending  another,  but  in  writs  real  or  personal,  where  no 
certainty  is  contained,  there  it  is  no  plea.  .  .  . 

Also  it  was  resolved,  that  although  the  first  action  was  in  another 
court,  soil,  in  the  King's  Bench,  or  vice  versa,  that  the  plea  is  good, 
vide  43    Edw.    III.    27    a,    ace.    and  that    the    book  in  34   Edw. 

III.  Brief  789,  is  good  law ;  for  it  doth  not  appear  by  the  plea,  that 
the  plaintiff  or  defendant  was  privileged  in  the  Exchequer,  and  then 
by  the  statute  of  Articuli  super  chartas,  cap.  4,  it  is  enacted,  that  no 
common  plea  shall  be  held  in  the  Exchequer ;  but  in  43  Edw.  III. 
27  a,  it  appears  that  the  defendant  was  privileged  in  the  Exchequer, 
and  therefore  the  plea  to  the  writ  there  was  good.  But  if  a  man  brings 
an  action  of  debt  by  bill  in  London  or  Norwich,  or  in  any  other  in- 
ferior court,  and  afterwards  brings  an  action  of  debt  in  the  Common 
Pleas,  this  suit  in  the  higher  court,  which  is  brought  pending  the 
suit  by  bill  in  an  inferior  court,  shall  not  abate,  as  appears  in  7 
Hen.  IV.  8  a,  and  3  Hen.  VI.  15  a,  b  ;  vide  43  Edw.  III.  22,  27,  and 
7  Hen.  IV.  44  a,  b,  Bringingham's  Case.     But  it  is  said  in  9  Edw. 

IV.  53  a,  that  all  the  king's  courts  at  Westminster  have  been  time 
out  of  mind,  etc.,  and  so  a  man  cannot  tell  which  of  them  is  the 
most  ancient  court. 

And  afterwards  it  was  adjudged  that  the  plea  was  good,  and  the 
plaintiff  took  nothing  by  his  bill.  And  so  note,  reader;  all  the 
books  which  prima  facie  seem  to  disagree  are  on  full  and  solid 
reason  unanimously  agreed  and  reconciled. 

JONATHAN   WILBUR,  EXECUTOR,   v.  JOHN   GILMORE. 

SupRBME  Judicial  Court,  Massachusetts.     183S, 

Reported  21  Pickering,  251. 

But  the  mischoice  of  an  action  does  not  extinguish  the  right  to  have  the 
proper  action. 

Trespass  qiiare  clausum.  The  action  was  submitted  to  referees, 
under  a  rule  of  court.     They  awarded  to  the  plaintiff  the  sum  of 


384  CASES    ON    COMMON-LAW    PLEADING. 

$5,  as  the  actual  value  of  wood  and  timber  cut  and  carried  away 
by  the  defendant,  and  submitted  to  the  determination  of  the  Court 
the  legal  questions  arising  in  the  case. 

The  trespass  was  committed  in  the  lifetime  of  the  plaintiffs  tes- 
tator. In  the  year  1835,  the  plaintiff  commenced  a  suit  against 
the  defendant  for  the  same  cause  of  action.  To  that  suit  there  was 
a  general  demurrer  and  rejoinder  in  the  Court  of  Common  Pleas, 
and  judgment  was  there  rendered  that  the  declaration  was  bad  and 
that  the  defendant  recover  his  costs.  The  defendant  insisted  that 
those  proceedings  were  a  bar  to  the  present  action. 

The  present  action  was  commenced  by  the  executor  after  the 
revised  Statutes  went  into  operation,  and  another  question  sub- 
mitted to  the  Court  by  the  referees  was,  whether  it  could  be  le- 
gally commenced  by  the  executor. 

If  the  Court  should  be  of  opinion  that  the  former  proceedings 
were  not  a  bar  to  this  suit,  and  that  the  plaintiff"  had  a  right  to 
maintain  this  action,  judgment  was  to  be  entered  that  the  award 
in  favor  of  the  plaintiff  be  accepted ;  and  if  otherwise,  the  defend- 
ant was  to  recover  his  costs  according  to  the  award. 

Colby,  for  the  plaintiff. 

Coffin  and  Pratt,  for  the  defendant. 

Morton,  J.,  said,  in  part,  as  follows  : 

2.  The  former  judgment  was  rendered  on  a  general  demurrer  to 
the  declaration,  and  is  no  bar  to  this  action. 

The  general  rule  undoubtedly  is,  that  the  judgment  in  one  action 
shall  bar  all  other  suits  between  the  same  parties  and  for  the  same 
cause  of  action.  Interest  reipuUicae  ut  sit  finis  litium.  But  this 
rule  is  limited  to  judgments  rendered  on  the  merits.  If  the  plain- 
tiff be  nonsuit  for  want  of  proof,  or  because  his  allegata  and  pro- 
bata do  not  agree,  or  for  any  other  cause,  he  may  commence 
another  action.  1  .i:^hitty  on  PL  (5th  ed.)  227  ;  Gould  on  PI.  478. 
Even  a  judgment  of  nonsuit  on  the  merits,  or  on  an  agreed  state- 
ment of  facts,  has  been  liolden  to  be  no  bar  to  another  action. 
Knox  V.  Waldoborough,  5  Greenl.  185 ;  Bridge  et  al.  v.  Sumner,  1 
Pick.  371.  So  if  .the  plaintiff  mistake  the  form  of  his  action,  as  if 
he  bring  trespass  instead  of  trover,  and  his  writ  be  adjudged  bad 
on  demurrer,  the  judgment  will  not  bar  an  action  of  trover.  1 
Chit.  PL  (5th  ed.)  227 ;  Gould  on  PL  478,  s.  46.  So  if  the  plaintiff 
mistake  his  cause  of  action  and  the  defendant  demur  and  have 
judgment,  this  will  not  preclude  the  plaintiff  from  commencing  a 
fresh  action,  correctly  setting  forth  the  right  cause.  So  also  if  the 
declaration  be  demurred  to,  or  a  bad  plea  be  pleaded  and  demurred 
to,  and  a  judgment  be  rendered  against  the  plaintiff  for  the  insuffi- 


DILATORY    PLEAS.  385 

ciency  of  his  declaration,  it  will  not  estop  the  plaintiff  from  bring- 
ing another  action  to  enforce  the  same  right ;  because  the  case  as 
stated  in  the  last  declaration  was  not  tried  in  the  hrst.  In  all 
these  cases,  if  the  defendant  plead  the  former  judgment  in  bar, 
the  plaintiff  may  reply  that  it  was  not  obtained  on  the  merits. 
1  Chit.  PL  (5th  ed.)  227 ;  Gould  on  PI.  478,  s.  45 ;  Vin.  Abr.  Judg- 
ment (Q.  4) ;  Lampen  v.  Kedgewin,  1  Mod.  207.  In  tliis  last  case, 
North,  C.  J.,  says,  "  there  is  no  question  but  that  if  a  man  mistakes 
his  declaration  and  the  defendant  demurs,  the  plaintiff  may  set  it 
right  in  a  second  action." 

It  is  apparent  from  the  record,  that  the  former  judgment  between 
these  parties  was  rendered  upon  the  insufficiency  of  the  declaration 
and  not  upon  the  merits  of  the  case,  and  therefore  can  be  no  bar 
to  the  present  action. 

Award  of  referees  accepted. 


ABEL   PARKER,    JUDGE   OF   PROBATE,   v.  DANIEL 
COLCORD. 

Supreme  Court  of  New  Hampshire,  Cheshire,  May  Term.    1819. 

Reported  2  New  Hampshire,  36. 

[Extract  from  the  opinion  of  Woodbury,  J.]  "  There  is  some 
apparent  contrariety  in  the  books  as  to  the  meaning  of  the  words  lis 
pendens,  or  *  the  pendency  of  a  suit.'  But  whether  a  suit  be  pending 
by  the  purchase  of  a  writ,  (1 )  or  the  service  of  it ;  (2)  or  the  filing 
of  bail ;  (8)  or  the  entry  of  the  action ;  (4), — all  these  events  had 
happened  in  the  first  suit,  prior  to  the  commencement  of  the  present 
one." 


./ 


FOWLER   V.  BYRD. 
Superior  Court,  Territory  of  Arkansas.     February,  1833. 
Reported  Federal  Cases,  No.  4999  a,  by  Samuel  H.  Hempstead,  Esq. 
A  suit  is  pending  by  the  purchase  of  a  writ. 

Clayton,  J.  This  was  an  action  of  debt,  brought  by  Richard  C. 
Byrd  against  Absalom  Fowler,  in  the  Circuit  Court  of  Pulaski 
County,  in  which  the  defence  set  up  was  a  plea  of  the  pending  of 
a  former  suit  for  the  same  cause  of  action.  The  circuit  court  per- 
mitted the  clerk  to  prove  by  parol  that  the  writ  in  the  former  suit 
had  been  dismissed,  overruled  the  plea,  and  gave  judgment  for  the 
plaintiff;  from  which  judgment  an  appeal  was  taken  to  this  court. 

25 


386  CASES   ON    COMMON-LAW   FLEADINO. 

In  chancery  it  is  settled,  that  a  lis  pendciis  is  created  by  filing  a  bill 
and  actual  service  of  the  subpoena.     2  Madd.  256  ;  1  Johns.  Ch.  566. 

At  law,  suing  out  a  writ  constitutes  the  pendency  of  a  suit,  with- 
out any  further  step,  and  neither  service  of  process,  nor  any  other 
proceeding,  is  required  to  form  the  ground  of  a  plea  of  another 
action  pending  for  the  same  cause.  1  Bac.  Abr.  23 ;  5  Coke  48,  51, 
The  plea  of  another  action  pending  is  an  affirmative  plea,  and  casts 
the  071US  probandi  upon  the  defendant  pleading  it,  and  the  proof  to 
sustain  it  must  be  record  evidence.  1  Saund.  PI.  &  Ev.  19.  A  record 
is  a  memorial  of  a  proceeding  or  act  of  a  court  of  record,  entered 
in  a  roll  for  the  preservation  of  it.  7"  Com.  Dig.  tit.  "  Eecord  "  A. 
When,  in  this  case,  the  defendant  in  the  court  below  showed  the 
issuing  of  a  writ  for  the  same  cause  of  action,  he  proved,  prhnd 
facie,  at  least,  the  pendency  of  a  suit ;  and  it  then  devolved  on  the 
plaintiff  to  prove,  by  competent  testimony,  that  the  suit  had  been 
disposed  of,  and  was  no  longer  pending.  The  parol  evidence  intro- 
duced for  the  purpose  was  not,  in  our  opinion,  legal.  Brush  v. 
Taggart,  7  Johns.  20;  Hasbrouck  v.  Baker,  10  Johns.  248;  Jenner 
V.  Joliffe,  6  Johns.  9.  Had  he  moved  for  leave  to  enter  at  that 
time  a  dismission  of  the  first  writ,  or  an  order  directing  the  clerk 
to  make  out  upon  the  record  a  statement  of  the  facts  and  dismis- 
sion, as  they  had  actually  occurred,  nunc  pro  tunc,  we  think  upon 
that  state  of  the  case  the  plaintiff  would  have  been  entitled  to  suc- 
ceed. But  failure  to  do  so,  and  the  attempt  to  supply  the  omis- 
sion by  parol  testimony,  constitutes  such  an  error  as  to  warrant  the 
reversal  of  the  judgment. 

It  is  probable  that  even  now,  the  plaintiff,  by  entering  of  record 
a  dismissal  of  the  first  suit  in  the  circuit  court,  wiU  be  entitled  to 
have  judgment  in  that  court.     Judgment  reversed. 


BROWN   V.  VAN   DUZEN.^ 

Supreme  Court  of  the  State  of  New  York.    October,  1814. 

Reported  1 1  Johnson,  472. 

A  suit  is  pending  by  the  service  of  a  writ. 

In  error,  from  the  Court  of  Common  Pleas  of  Orange  County. 
This  was  an  action  of  debt  on  a  recognizance  for  fifty  dollars,  taken 
before  a  justice  of  the  peace,  upon  a  plea  of  title,  pursuant  to  the 
tenth  section  of  the  twenty -five-dollar  act,  brought  by  Brown  against 
Van  Duzen,  who  was  impleaded  with  Peynolds.     In  the  action 

1  The  arguments  of  counsel  are  omitted. 


DILATORY   PLEAS.  387 

before  the  justice,  Brown  was  plaintiff,  and  Reynolds  defendant, 
and  Van  Duzen  entered  into  the  recognizance  as  surety  for  lieynolds. 
The  breach  assigned  by  the  plaintiti'  in  his  declaration  was  that 
Reynolds  did  not  appear  and  put  in  bail,  at  the  next  (Jourt  of  Com- 
mon Pleas,  to  a  suit  commenced  against  him  by  the  plaintiff,  accord- 
ing to  the  condition  of  the  recognizance.  The  defendant  pleaded 
nil  debet,  and  gave  notice  of  evidence  that  the  plaintiff  had  dis- 
charged the  recognizance. 

The  plaintiff  produced  and  proved  the  recognizance,  and  that  he 
issued  a  writ  in  trespass,  in  the  Orange  County  Common  Pleas, 
returnable  at  the  next  term  after  the  recognizance  was  taken,  which, 
in  consequence  of  the  death  of  the  deputy  sheriff"  shortly  after  it 
was  delivered  to  him,  was  lost,  and  the  defendant  therein  had  never 
been  arrested.  The  plaintiff'  attempted  to  prove  that  the  deputy 
sheriff  endeavored  to  serve  the  writ,  and  that  Reynolds  eluded  liim, 
and  kept  himself  armed  to  prevent  an  arrest. 

The  defendant.  Van  Duzen,  went  into  evidence  to  show  that  the 
issuing  the  writ  against  Reynolds  was  a  feigned  proceeding;  and 
declarations  and  acknowledgments  by  the  plaintiff  were  proved,  to 
this  effect :  "  that  it  was  in  his  power  to  have  taken  Reynolds,  if 
he  wished,  but  that  it  was  not  his  intention  to  do  so,  and  that 
he  had  some  other  person  in  view  to  charge."  To  this  evidence 
the  plaintiff  objected,  and  on  his  objection  being  overruled,  the  bill 
of  exceptions  was  taken.  The  jury  below  gave  a  verdict  for  the 
defendant. 

risk,  for  the  plaintiff  in  error. 

C.  Ruggles,  contra. 

Piatt,  J.,  delivered  the  opinion  of  the  court.  It  was  incumbent 
on  the  plaintiff  to  prove  :  1,  The  recognizance  ;  and  2,  That  he  com- 
menced a  suit  for  the  trespass,  before  the  next  term  of  the  common 
pleas.  \ 

Whether  merely  issuing  the  writ  and  delivering  it  to  the  sheriflr\ 
to  be  served,  without  actual  service,  and  without  an  alias  and  lAii- 
ries  capias,  can  be  deemed  a  commencement  of  the  suit,  in  the 
sense  of  this  recognizance  ;  and  whether  the  recognizance  ought  not 
to  be  taken  to  the  people,  are  questions  which  need  not  be  decided 
in  this  case. 

It  was  indispensably  necessary  for  the  plaintiff  to  prove  at  least 
the  delivery  of  the  writ  to  the  proper  officer,  with  a  bona  fide  inten- 
tion of  having  it  served ;  and  if  the  defendant  could  show  that  it 
was  a  feigned  proceeding,  without  intention  on  the  part  of  the 
plaintiff  to  have  it  served,  or  could  show  ground  to  presume  tliat 
the  plaintiff  had  instructed  the  officer  not  to  serve  the  writ,  it  was 


388  CASES   ON   COMMON-LAW   PLEADING. 

pertinent  evidence ;  because  it  went  to  disprove  "  the  corarnence- 
inent  of  the  suit,"  in  the  largest  sense  of  the  phrase. 

If  the  plaintiff  could  have  succeeded  in  proving  the  suit  com- 
menced, lie  would  have  recovered  fifty  dollars  of  the  surety,  with- 
out encountering  the  plea  of  title  set  up  by  Eeynolds.  Hence  the 
materiality  of  that  evidence. 

The  counsel  have  argued  the  case  as  though  the  evidence  offered 
by  the  defendant  was  intended  to  operate  as  a  direct  release  or  dis- 
charfje  of  the  recognizance,  whereas  it  goes  to  contradict  an  essen- 
tial  averment  in  the  declaration ;  to  wit,  the  commencement  of  the 
suit  against  Reynolds.  In  the  latter  view  it  was  proper  evidence ; 
and  the  judgment  below  ought  to  be  affirmed. 

Judgment  affirmed. 


TATLOW  OR  CASTLE  v.   BATEMENT. 

In  the  King's  Bench.     1671. 

Reported  2  Levinz,  13. 

A  suit  is  pending  upon  the  filing  of  bail. 

Trover ;  and  upon  non  cuV ,  verdict  for  the  plaintiff ;  and  it  was 
moved  in  arrest  of  judgment,  that  the  action  is  brought  before  the 
cause  of  action  accrued ;  for  the  conversion  is  laid  at  a  day  in 
Easter  Term,  and  the  declaration  is  generally  as  of  Easter  Term, 
and  not  at  a  day  certain  (as  by  memorana  quod  tali,  etc.,  it  may  be), 
and  then  this  must  relate  to  the  first  day  of  the  term.  But  per  cur\ 
't  is  well  enough  if  the  bail  was  filed  after  the  cause  of  action  accrued, 
for  here  no  action  can  be  depending,  nor  declaration  delivered,  tmtil 
tne  defendant  be  in  eustodia  MarescaMi,  and  that  is  never  till  bail 
filed,  whieih  filing  is  at  a  day  certain.  Upon  which  it  was  referred 
to  Lively,  the  Secondary,  to  examine  when  the  bail  was  filed. 
Saund/rs,  for  the  defendant. 

JAMES   H.    BULLOCK   v.    EDWIN   A.   BOLLES. 

Supreme  Court  of  Rhode  Island,  October  Term.     1870. 
Heporteij  9  Rhode  Island,  501, 
A  suit  is  pending  upon  the  entry  of  the  action. 

Assumpsit  upon  a  promissory  note. 

Brayton,  C.  J.     This  action  is  brought  to  recover  of  the  defend- 
ant the  amount  of  a  promissory  note  made  by  him,  and  payable  to 


DILATORY   PLEAS.  389 

the  plaintiff,  for  the  sum  of  $300,  and  the  declaration  also  contain^ 
the  common  money  counts  for  the  sum  of  $300.  The  action  was 
commenced  at  the  March  Term,  1870,  of  the  Supreme  Court  for 
this  county,  by  the  service  of  the  writ  upon  the  defendant  on  the 
24th  day  of  January,  1870. 

And  the  defendant  has  pleaded  in  abatement  that,  on  the  20th 
day  of  December  preceding,  the  plaintiff  sued  out  a  writ  from  the 
Court  of  Common  Pleas,  to  be  holden  at  I'rovidence,  within  and 
for  the  county  of  Providence,  on  the  first  Monday  of  June,  1870, 
in  which  writ  the  defendant  was  impleaded  in  an  action  of  the 
case  for  the  same  cause  as  in  the  writ  and  declaration  in  this 
action,  and  that  the  parties  were  the  same  (the  said  Bullock  and 
the  said  Bolles),  and  that  the  writ  sued  out  of  the  Court  of  Com- 
mon Pleas  was  duly  served  upon  defendant,  and  remains  in  full 
force  and  undetermined. 

To  this  plea  the  plaintiff  has  filed  a  general  demurrer,  and,  the 
plea  being  one  in  abatement,  the  demurrer  is,  in  effect,  as  to  this 
plea,  special.  And  the  question  is,  if  there  be  any  defect  in 
the  plea  which  can .  be  reached  by  a  special  demurrer. 

The  defect  of  this  plea,  it  is  objected,  is,  that  it  does  not  appear 
by  the  pleading  that  the  prior  action  in  which  the  defendant  is  al- 
leged to  have  been  interpleaded  was  ever  matter  of  record,  arid 
that  it  is  necessary  that  it  should  be  of  record  to  be  matter  of 
abatement,  and  be  referred  to  by  saying,  "as  by  the  record  remain- 
ing thereof  in  -said  court  appears,"  giving  the  plaintiff  the  opportu- 
nity to  reply,  "  mil  tie!  record." 

In  support  of  this  the  plaintiff  has  cited  the  case  of  Clifford  a. 
Coney,  1  Mass.  494,  which  hulds  that  the  plea  must  state  matter  oh 
record,  and  refer  to  it  as  by  the  record  thereof,  etc.  Another  case 
cited  is  Commonwealth  v.  Churchill,  5  Mass.  174,  affirming  the  first, 
and  holding  that  the  writ  in  the  suit  pleaded  in  abatement,  before 
it  can  be  pleaded,  must  be  returned  and  entered,  and  that  until  then 
it  cannot  be  said  to  be  pending  in  court. 

We  have  been  furnislied  with  no  authority  to  the  contrary  by  the 
defendant's  counsel,  and  he  replies  only  by  urging  that  he  has 
alleged  "  the  suing  out  the  writ  from  the  Court  of  Common  Pleas 
wherein  he  is  impleaded,  its  service  upon  the  defendant,  and  that  it 
is  still  undetermined."  This  does  not  seem  to  us  a  sufficient  replv; 
it  does  not  impugn  the  cases  or  distinguish  between  them  and  the 
case  at  bar. 

A  writ  not  returned,  say  the  books,  is  not  matter  of  record.  If 
not  returned,  the  writ  itself  must  be  produced,  and  can  no  other- 
wise be  proved.     If  it  has  been  returned,  then  it  is  a  record,  it  may 


390  CASES    ON   COMMON-LAW    PLEADING. 

be  proved  as  every  other  record  may,  by  an  examined  copy.  2 
Starkie,  285. 

Buller  (N.  P.  234)  says,  if  a  writ  be  matter  of  inducement  only, 
it  may  be  proved  by  the  production  of  the  writ  itself,  without  a 
copy  of  the  record ;  but  when  the  writ  is  the  gist  of  the  action,  you 
must  have  a  copy  of  the  record ;  inasmuch  as  you  must  have  the 
utmost  evidence  the  nature  of  the  thing  is  capable  of,  and  it  cannot 
become  the  gist  of  the  action  till  its  return. 

Bacon's  Abridgment,  treating  of  pleas  of  this  kind,  lays  down  the 
rule  that  when  it  appears  of  record  that  another  action  is  pending 
for  the  same  matter,  it  may  be  pleaded  in  abatement.  All  the  cases 
are  consistent  with  the  rule  as  thus  laid  down  in  Sparry's  Case,  5 
Co.  61. 

The  old  difference  in  the  books  was  between  writs  which  compre- 
hend certainty,  a  debt  determined,  and  writs  which  comprehend  no 
certainty,  as  in  writs  of  trespass  for  goods,  assize,  etc.  If  certain,  it 
is  a  good  plea  to  say  the  writ  is  brought  pending  another ;  but  in 
writs  personal  or  mixed,  where  no  certainty  is  contained,  then  it  is 
no  plea.  But  after  declaration  it  is  made  certain,  and  then  the  plea 
is  good ;  the  generality  is  reduced  to  certainty. 

No  question  seems  to  have  been  made  as  to  writs  never  returned. 
All  the  cases  are  of  writs  returne^fwheaKhe  plaintiff  had  not  de- 
clared, as  by  the  English  ^^(rt^ce  he  was  not  required  to  do,  till 
after  the  return  of  the  writ,  and  sometimes  long  after. 

In  the  case  referred  to  in  Coke  as  example  (22  Hen.  VI.  52)  it 
was  part  of  the  plea  that  the  plaintiff  had  declared  in  a  wTit  of 
trespass,  and  as  this  had  made  it  certain,  the  plea  was  held  good ; 
but  in  20  Hen.  VI.  445,  the  plea  was  held  bad  in  that  it  did  not 
aver  that  the  plaintiff  had  declared  in  trespass.  In  an  assize  of 
Novel  disseisin,  14  Edw.  III.  270,  the  plea  was  another  writ  de- 
pending, of  the  same  tenements,  between  the  same  parties.  The 
writ  of  assize  was  held  good,  the  plea  bad,  because  the  plaint  was 
not  made  in  the  first  writ,  so  that  non  potest  constare  of  what  tene- 
ment it  was. 

In  Queen  v.  Harris,  Cro.  Eliz.  261,  prior  reforme  was  pleaded ; 
objection,  no  writ  alleged  to  have  issued ;  answer,  on  the  tiling  of 
the  information  it  became  matter  of  record  without  any  process,  so 
it  is  not  like  other  writs.  It  is  immediately  depending,  though  no 
writ. 

In  Armitage  v.  Row,  12  Mod.  91,  there  was  a  motion  by  the  de- 
fendant that  the  plaintiff  might  file  his  original  writ  and  enter  up 
the  issue  on  the  record,  for  he  had  been  arrested  three  times  for  the 
same  cause,  and  he  doubted  if  he  might  plead  another  action  pend- 


DILATORY   PLEAS.  391 

ing  with  a  joint  petit  per  recordum  before  it.  The  issue  was  en- 
tered up.  Per  curiam :  He  may  ;  and  if  he  do  not  enter  it  you 
may,  without  any  motion  in  court,  give  a  rule  to  enter  it.  The 
marginal  note  is  that  it  may  be  pleaded,  another  action  pending 
before  the  issue  is  entered  up.  But  the  whole  matter  was  in  court, 
and  the  court  were  dealing  with  it,  so  that  they  could  make  an 
order  in  it  upon  the  parties.  The  motion  itself  shows  the  under- 
standing of  the  counsel  and  the  court,  that  it  was  necessary,  to  the 
validity  of  the  plea,  that  the  case  should  be  so  pending  in  court  that 
the  party  could  of  the  allegation  say,  "  as  by  the  record  remaining 
in  said  court  appears." 

With  the  rule  as  stated  in  Bacon,  all  the  precedents  of  this  plea 
agree.  They  all  state  that  the  party  was  impleaded,  not  in  the  writ, 
but  in  the  court,  naming  the  court  and  the  term  thereof.  They  all 
assume  that  the  action  is  in  that  court,  pending  in  it,  became  a 
matter  of  record  there ;  so  that  it  may  be  properly  said  of  the  mat- 
ter pleaded,  that  it  appears  of  record. 

It  is  necessary  to  allege  in  what  court  the  action  is  depending ; 
for  if  it  be  not  in  some  of  the  superior  courts,  but  in  a  court  of  in- 
ferior jurisdiction,  it  is  not  pleadable  in  abatement.  And  so  are  all 
the  precedents.  ^ 

yi      ^*^l/'*^ '  Demurrer  sustained. 

JOSEPH   CLIFFORD   v.  JASON    D.    CONY. 

ScPKEME  Judicial  Court,  Massachusetts,  June  Term.    1805. 

Reported  1  Massachusetts,  495. 

When  is  the  prior  action  to  be  pending  ?     At  the  time  of  the  plea  filed. 

This  was  an  action  which  was  brought  into  this  court  by  appeal 
from  a  judgment  of  the  Court  of  Common  Pleas  in  this  county, 
holden  on  the  3d  Tuesday  of  May  last.  The  declaration  was  as 
follows,  viz. :  "  Jason  D.  Cony,  a  deputy  sheriff  in  and  for  said 
county,  was  attached  to  answer  to  Joseph  Clifford  in  a  plea  of  debt, 
for  that  whereas  one  Theophilus  Hamblin,  by  the  consideration  of 
the  justices  of  the  Supreme  Judicial  Court,  holden  at  Augusta,  within 
and  for  the  said  county  of  Kennebeck,  on  the  first  Tuesday  of  June, 
in  tlie  year  of  our  Lord  one  thousand  eight  hundred  and  four,  re- 
covered judgment  agamst  the  plaintiff  for  the  sum  of  sixteen  dollars 
and  twelve  cents  debt  and  costs  of  suit,  taxed  at  fourteen  dollars 
and  eighty-three  cents,  being  thirty  dollars  and  ninety-five  cents 
in  the  whole  ;  and  the  said  Hamblin,  afterwards,  on  the  twenty-tifth 
day  of  June,  in  the  same  year,  sued  out  a  writ  of  execution  in  due 


392  CASES   ON   COMMON-LAW   PLEADING. 

form  of  law  against  the  plaintiff  for  the  recovery  of  the  aforesaid 
sum ;  and  afterwards,  on  the  twenty -eighth  day  of  the  same  month 
of  June,  the  plaintiff  paid  the  said  Hamblin  fourteen  dollars  and 
seventy  cents,  part  of  the  sum  due  on  said  execution,  which  sum 
was  then  and  there  indorsed  on  said  execution ;  and  the  said  Ham- 
blin, afterwards  on  the  twenty-tifth  day  of  October,  in  the  same 
year,  delivered  the  said  writ  of  execution  to  the  said  Cony,  then  and 
there  being  a  deputy  sheriff  in  and  for  said  county  as  aforesaid,  with 
the  sum  of  fifteen  dollars,  and  no  more  due,  thereon ;  and  the  said 
Cony  afterwards,  on  the  tenth  day  of  October,  in  the  same  year,  at 
,  aforesaid,  he  then  and  there  being  a  deputy  sheriff  as  afore- 
said, did  then  and  there  wilfully  and  corruptly  demand  and  receive 
of  the  plaintiff  the  sum  of  four  dollars  for  and  as  his  fee  on  and  for 
the  collection  of  said  execution  or  the  sum  then  due  thereon  as 
aforesaid ;  which  sum  exceeds  the  fees  established  by  a  law  of  this 
commonwealth;  whereby  the  said  Cony  hath  forfeited  the  sum 
of  thirty  dollars  to  the  use  of  the  plaintiff,  who  brings  the  action 
for  the  recovery  of  the  same.  Yet  tlie  said  Cony,  though  often  re- 
quested, the  same  sum  has  not  paid,  but  detains  it ;  to  the  damage 
of  the  said  Clifford,  as  he  saith,  the  sum  of  fifty  dollars." 

The  writ  in  this  action  was  tested  the  27th  day  of  April,  1805, 
was  served  on  the  defendant,  Cony,  the  6th  of  May  following,  and 
returnable  to  the  Court  of  Common  Pleas  on  the  third  Tuesday  of 
the  same  month.  The  defendant  appeared  and  pleaded  in  the 
Court  of  Common  Pleas  as  follows,  viz. :  "  And  the  said  Cony,  by 
Bridge  and  Williams,  his  attornies,  comes  and  defends  the  force  and 
injury  when,  etc.,  and  prays  judgment  of  the  plaintiff's  writ  and 
declaration  aforesaid,  and  that  the  same  may  be  quashed,  because 
he  says,  that  after  committing  of  the  said  supposed  offence  in  the 
same  declaration  mentioned,  and  long  before  the  day  of  the  com- 
Biencement  of  the  plaintiff's  action  thereof  against  the  said  Cony, 
to  wit,  on  the  eighth  day  of  April,  in  the  year  of  our  Lord  one  thou- 
sand eiglit  hundred  and  five,  at  said ,  the  right  of  action  for  the 

same  supposed  offence  was  attached  in  one  John  Brooks,  and  that 
the  said  Brooks,  there  afterwards  on  the  same  day,  sued  forth  out  of 
.the  clerk's  office  of  said  Court  of  Common  Pleas,  a  certam  writ 
against  him,  the  said  Conv,  du'ected  to  the  coroners  of  the  county 
of  Kennebeck  aforesaid,  by  which  said  writ  the  said  coroners  were 
commanded  to  attach  the  goods  and  estate  of  the  said  Cony,  and  to 
have  him,  the  said  Cony,  before  the  said  Court  of  Common  Pleas, 
then  next  to  be  holden  at  Augusta,  wdthin  and  for  the  said  county 
on  the  third  Tuesday  of  May,  to  answer  to  the  said  Brooks  in  a  plea 
of  debt,  and  that  the  said  coroners  then  and  there  should  have  that 


DILATORY   PLEAS.  393 

writ ;  and  that  afterwards,  and  before  the  return  of  the  said  writ, 
and  before  the  said  Clifford's  writ  was  served  upon  him,  the  said 
Cony,  and  before  he,  the  said  Cony,  had  any  notice  of  that  writ's  be- 
ing sued  out,  or  intended  to  be  sued  out,  to  wit,  on  the  8th  day  of 
April  aforesaid,  he,  the  said  Cony,  was  served  with  said  writ  so  sued 
out  by  the  said  Brooks,  and  in  obedience  to  the  said  writ,  he,  the 
said  Cony,  according  to  the  course  and  practice  of  the  said  court,  at 
the  return  of  the  said  writ  so  sued  out  by  the  said  Brooks,  appeared 
in  the  said  court  here  to  answer  to  the  said  writ  so  sued  out  by  the 
said  Brooks ;  and  that  thereupon  the  said  Brooks,  at  this  term  of 
this  court,  to  wit,  on  the  third  Tuesday  of  May  mstant,  exhibited  his 
writ  aforesaid  against  the  said  Cony  in  due  form  for  the  recovery 
of  the  supposed  debt  by  him  demanded  as  aforesaid.     And  the  said 
Cony  says,  that  the  said  Brooks'  action  aforesaid,  against  him,  the 
said  Cony,  is  for  the  same  cause  of  action,  and  for  the  same  identi- 
cal supposed  offence  as  that  complained  of  in  the  plaintiff's  declara- 
tion aforesaid ;  and  this  the  said  Cony  is  ready  to  verify ;  wherefore 
he,  as  before,  prays  judgment  of  the  said  writ  and  declaration  of 
the  said  Clifford,  and  that  the  same  may  be  quashed,  and  for  his 
costs." 

To  this  plea  the  plaintiff  demurred  generally,  and  the  defendant 
-joined  in  demurrer.  The  demurrer  concluded  thus:  "Wherefore, 
for  want  of  a  sufficient  answer  in  this  behalf,  the  said  Clifford  prays 
judgment,  and  his  debt  aforesaid  with  his  damages  by  reason  of  the 
detention  of  that  debt  to  be  adjudged  to  him."  i 

The  judgment  in  the  Court  of  Common  Pleas,  which  was  rendered 
by  consent  of  the  parties,  without  argument  and  merely  for  the  pur- 
pose of  bringing  the  action  immediately  to  this  court  by  appeal,  was 
that  the  plea  in  abatement  was  good  and  sufficient  in  law  to  abate 
the  plaintiff's  writ  and  declaration  ;  and  that  the  same  should  be 
quashed,  and  that  the  defendant  should  recover  his  costs.  From 
which  judgment  the  plaintiff  appealed,  and  entered  the  same  in  this 
court. 

P.  Mellen,  for  the  plaintiff.2 

Wilde,  for  the  defendant,  referred  to  the  case  of  Coombe  v.  Pitt, 
3  Bur.  1423,  to  show  that  the  plea  in  abatement  was  sufficient.  It 
is  sufficient  to  show  by  the  plea  that  at  the  time  of  the  purchase  of 
the  writ,  the  plaintiff  had  no  right ;  this  is  done ;  and  no  subse- 
quent event  shall  place  him  in  a  better  situation  than  he  was  when 
he  commenced  his  action.     In  Bac.  Abr.  Pleas  and  Pleadings,  F.  11, 

1  Qimie  if  this  was  not  a  discontinuance.     See  Com.  Dijr.  PJeader  Will  II  1  Salk 
177,  218.     Lill.  Ent.  9,  niai-oinal  note. 

2  Mellen's  argument  as  to  the  second  objection  to  the  plea  is  omitted. 


394  CA.SES    ON   COMMON-LAW   PLEADING. 

it  is  said  that  "  where  the  plaintiff  has  sued  out  two  writs  against 
the  same  defendant  for  the  same  thing,  the  first  not  being  deter- 
mined, the  second  writ  shall  abate ;  and  it  is  not  necessary  that  both 
should  be  pending  at  the  time  of  the  defendant's  pleading  in  abate- 
ment, for  if  there  was  a  writ  in  being  at  the  time  of  suing  out  the 
second,  it  is  plain  the  second  was  vexatious  and  ill  ah  initio,  and 
therefore  could  not  be  rectified  by  a  subsequent  determination  of 
the  first."  The  precedents  which  have  been  cited  from  Lilly  are  all 
of  former  actions  commenced  by  the  same  person;  and  although  the 
pleas  state  the  pendency  of  the  former  actions,  yet,  according  to  the 
rule  in  Bac.  Abr.  it  was  not  necessary;  nothing  therefore  can  be 
inferred  merely  from  the  form  of  pleading  in  those  cases.  Suing 
out  a  writ  in  cases  of  this  nature  attaches  a  right  in  the  person  who 
purchases  the  writ ;  and  a  discontinuance,  etc.,  if  it  existed,  ought  to 
be  shown  by  the  other  side.  But  here  it  sufficiently  appears  that 
the  first  action  was  entered  and  pending  at  the  time  of  tlie  plea 
filed.  The  plea  states  that  the  first  writ  was  returnable  to  the  Court 
of  Common  Pleas  to  be  h olden  on  the  third  Tuesday  of  May,  and 
the  defendant,  in  obedience  to  the  writ,  according  to  the  course  and 
practice  of  the  court,  at  the  return  of  the  writ,  appeared  in  the  court 
to  answer  to  the  same,  and  that  the  plamtiff,  at  the  same  term  (the 
term  in  which  the  plea  in  abatement  was  filed),  exhibited  his  writ 
aforesaid  against  the  defendant  in  due  form,  etc. ;  the  whole  term 
is,  in  law,  but  one  day ;  and  therefore  it  substantially  appears  that 
the  first  action  was  pending  at  the  time  of  the  plea  filed ;  that  it 
was  pending  in  the  same  term  at  the  same  time.  If  the  plea  be  not 
correct  in  point  of  form,  yet  it  is  sufficient  on  a  general  demurrer ; 
and  it  would  be  very  hard  to  compel  the  defendant  to  answer  to  a 
second  action  for  a  mistake  in  pleading,  a  mistake  merely  in  form, 
and  which  ought  to  have  been  pointed  out  as  cause  of  demurrer, 
that  he  might  stop  in  season,  and  amend ;  which  is  the  true  rea- 
son why  mistakes  in  form  cannot  be  taken  advantage  of  on  a  gen- 
eral demurrer. 

But  in  this  case  the  plaintiff's  declaration  is  bad,  and  therefore  it 
is  of  no  consequence  whether  the  plea  be  good  or  not.  [Court.  We 
do  not  take  notice  of  defects  in  the  declaration  upon  a  demurrer  to 
a  plea  in  abatement.]  Wilde.  The  facts  relied  upon  by  the  de- 
fendant might  have  been  pleaded  in  bar,^  and  therefore  the  rule  of 
strict  construction,  as  to  pleas  in  abatement  in  general,  is  applica- 
ble to  the  present  case. 

Mellen,  in  reply.  It  has  been  contended  that  pendency  of  the 
first  action  need  not  be  averred  in  a  plea,  and  that  the  negative 

1  Quaere  of  this. 


DILATOEY    PT.EAS.  305 

must  come  from  the  other  side.  This  is  contrary  to  all  rules  of 
pleading,  and  is  expressly  contradicted  by  the  authorities  cited  for 
the  plaintiff.  But  it  is  said  that  it  does  appear  by  the  plea  that 
the  former  action  was  pending,  and  the  allegation  respecting  the 
exhibition  of  the  writ,  etc.,  is  relied  on.  There  is  no  certainty  in 
that  allegation ;  the  plea  does  not  even  allege  that  the  action  was 
entered.  The  records,  here,  always  state  that  the  action  was  en- 
tered. If  it  be  contended  that  exhibiting  means  entering,  then 
the  plea  ought  to  have  averred  that  that  action  was  entered  pre- 
vious to  the  entry  of  the  present ;  and  then,  perhaps,  it  might  com- 
pare with  the  English  practice  of  tiling  a  declaration.  But  we 
know  nothing,  in  our  practice,  of  exhibiting  and  filing,  in  the  sense 
of  their  proceedings.  Our  practice  is  totally  different;  and  an 
action  cannot,  here,  be  shown  to  be  pending  otherwise  than  by 
averring  that  the  same  was  entered,  and  still  remains  in  the  court 
undetermined. 

It  was  not  necessary  to  demur  specially ;  it  is  never  necessary  to 
a  plea  in  abatement.  There  is  a  late  case,  reported  by  Durnford 
and  East,  in  which  it  was  so  decided.^ 

The  substance  of  the  defence  is  pendency  of  the  former  action, 
which  if  not  averred  there  is  nothing  averred  which  can  avail  the 
defendant ;  and  it  not  being  alleged  that  the  proceedings  appear  of 
record,  as  it  ought  to  have  been,  the  plaintiff  can  neither  have  oyer 
nor  reply  nul  tid  record. 

Thacher,  J.  The  plea  does  not,  in  my  opinion,  show  that  the 
former  action  was  pending;  it  is  therefore  insufficient.  A  special 
demurrer  was  not  necessary ;  I  have  never  known  one  to  a  plea  in 
abatement. 

Sewall,  J.  I  am  not  satisfied  that  the  first  objection  ought  to 
avail ;  because  I  am  inclined  to  think  that  it  does  appear  by  the 
plea  that  the  former  action  was  pending.  But  as  there  is  no  refer- 
ence to  the  record,  and  as  the  party  has  the  right  of  replying  to  such 
record,  which  he  cannot  do  in  this  case  for  want  of  such  reference 
in  the  plea,  I  am  also  of  opinion  that  it  is  bad ;  and  whether  the 
defect  is  in  form  or  substance  is  immaterial;  for  want  of  form,  in  a 
plea  in  abatement,  may,  as  I  think,  be  taken  advantage  of  on  a  gen- 
eral demurrer. 

Sedgwick,  J.  The  greatest  exactness  is  required  in  pleas  in  abate- 
ment ;  because  no  plea  which  goes  to  prevent  a  discussion  of  the 
merits  of  the  case  ought  to  be  favored.     In  tlie  present  case,  the 

1  Qurvra  if  Bmklle  v.  Wilson,  3  T.  Kep.  369,  was  not  the  case  intended.  It  was 
there  decided  that  a  plea  in  al)atement  after  a  general  imparlance  is  bad,  and  may  be 
taken  advantage  of  on  a  general  demurrer. 


396  CASES    ON    COMMON-LAW    PLEADING. 

defendant  was  bound  to  show  clearly,  and  past  all  dispute,  that 
the  former  action  was  pending  at  the  time  of  the  plea  filed.  This 
does  not  appear.  Every  fact  stated  in  the  plea  may  be  admitted  to 
be  true,  and  yet  that  action  might  have  been  previously  discon- 
tinued. On  the  other  point,  the  plea  ought  to  have  referred  to  the 
record.  As  the  plea  is,  in  my  opinion,  bad  on  both  grounds,  there 
must  be 

/  Judgment  of  respondeat  ouster. 

COMMONWEALTH   v.    ASAPH   CHURCHILL. 

Supreme  Judicial  Court,  Massachusetts,  March  Term.     1809. 

Reported  5  Massacucsetts,  174. 
When  is  the  prior  action  pending?     When  it  becomes  matter  of  record. 

This  was  an  indictment  against  the  defendant  for  corruptly  tak- 
ing usurious  interest  upon  a  loan  of  money  to  one  Ebenezer  Clough. 
The  pleadings,  as  far  as  they  apply  to  the  question  before  the  court, 
will  appear  in  the  summary  account  with  which  the  opinion  of  the 
court  was  introduced,  as  the  same  was  delivered  by 

Parsons,  C.  J.  On  the  second  day  of  April  last,  Luther  Eames 
sued  an  action  of  the  case  qui  tarn  against  the  defendant  to  recover 
a  penalty  for  taking  usurious  interest  against  the  statute  of  1783,  c. 
55,  by  which  it  is  provided  that  the  penalty  may  be  recovered  by 
indictment,  or  by  action  on  the  case,  one  moiety  to  any  person  who 
may  prosecute  for  the  same.  At  the  Common  Pleas  a  verdict  was 
found  for  the  defendant,  and  the  plaintiff  appealed  from  the  judg- 
ment rendered  thereon.  He  entered  his  appeal  at  the  last  Novem- 
ber Term  of  this  court,  at  which  term  an  indictment  was  found 
against  the  defendant  for  taking  unlawful  interest.  To  this  indict- 
ment the  defendant  pleaded  the  former  action  of  Eames  against  him 
then  pending  an  abatement,  with  the  usual  averments  that  the  action 
and  indictment  were  for  the  same  offence,  and  to  recover  the  same 
penalty.  After  this  plea  was  filed,  Eames  in  the  prior  action  be- 
came nonsuit.  Afterwards,  but  in  the  same  term,  the  Solicitor-Gen- 
eral replies  the  subsequent  nonsuit.  To  this  replication  there  is  a 
demurrer,  which  is  joined. 

The  first  question  arises  on  the  validity  of  the  replication.  The 
Solicitor-General  might  have  replied  that  the  civil  action  was  sued 
by  fraud  and  covin  between  the  parties ;  and  as  he  has  not,  but  has 
chosen  to  confess  and  avoid  it,  that  action  must  be  considered  as 
prosecuted  land,  fide.  The  merits  of  a  plea,  so  far  as  they  depend 
on  the  allegation  of  facts,  must  be  determined  by  the  law  and  the 


DILATORY    PLEAS.  397 

facts  existing  when  the  plea  is  pleaded  ;  and  I  do  not  recollect  any 
case  where  a  plea  can  be  confessed  and  avoided  by  a  posterior  fact 
done  by  a  party  not  pleading  it.  For  pleas  after  tlie  last  continu- 
ance stand  on  different  principles.  Now,  if  the  plea  must  be  taken 
to  be  true  when  the  replication  was  filed,  and  if,  when  pleaded,  it 
was  sufficient  to  abate  the  indictment,  a  fact  happening  afterwards 
cannot  make  an  indictment,  which  was  once  abateable  by  law,  good. 
I  therefore  lay  the  subsequent  nonsuit  in  the  first  action  out  of  the 
case,  and  shall  consider  the  sufficiency  of  the  plea.  And  if  a 
former  action  pending  for  the  same  penalty  is  sufficient  to  abate  an 
indictment  to  recover  the  same  penalty,  then,  if  the  averments  in 
the  plea  are  formal  and  regular,  it  is  good. 

It  is  very  well  known  that  a  man  cannot  bring  a  second  action 
for  the  same  cause  for  which  he  has  a  prior  action  pending.  The 
same  rule  extends  to  qui  tarn  actions,  where  the  plaintiffs  are  differ- 
ent, if  the  cause  of  the  two  actions  is  the  same.  The  same  reason 
will  extend  the  rule  to  informations  qui  tarn,  and  to  indictments  to 
recover  forfeitures  on  penal  statutes,  but  not  either  to  informations 
or  indictments  for  crimes.  Eex  v.  Stratton  et  al.,  Doug.  240  ;  Rex 
V.  Swan  and  Jeffry,  Fost.  104.  As  to  informations  for  penalties,  it 
was  determined  in  Eegina  v.  Harris,  Cro.  Eliz.  261,  that  an  informa- 
tion on  the  statute  of  5  Edw.  VI.  for  buying  wood,  etc.,  filed  in  the 
King's  Bench,  when  there  was  pending  in  the  Common  Pleas  a  prior 
information  by  one  Lewis  for  the  same  offence,  must  abate.  And 
Hawkins,  Hawk.  P.  C.  B.  2,  c.  26,  s.  63,  lays  down  the  law  gen- 
erally, that  whenever  any  suit  on  a  penal  statute  may  be  said  to 
be  actually  pending,  it  may  be  pleaded  in  abatement  of  a  subsequent 
prosecution,  being  expressly  averred  to  be  for  the  same  offence. 
Now,  an  indictment  is  a  prosecution,  and  an  expensive  one,  for  the 
defendant  may  be  arrested  and  imprisoned,  or  held  to  bail ;  and  if 
acquitted,  he  cannot  recover  costs. 

The  reason  of  this  rule  is  well  expressed  in  a  familiar  law  maxim. 
Nemo  debet  bis  vexari,  si  constet  curiae,  quod  sit  pro  una  et  eadem 
cau^.  But  an  indictment  to  recover  a  penalty  on  a  penal  statute, 
and  an  action  qui  tarn,  may  certainly  appear  to  be  for  the  same 
cause,  and  the  former  may  be  the  most  vexatious. 

If  it  be  objected  that,  because  it  does  not  appear  on  what  day  the 
plea  was  filed,  it  cannot  be  known  that  the  civil  action  was  pend- 
ing when  the  plea  was  pleaded :  it  may  be  answered,  that  the  plea 
contains  an  averment  that  the  action  was  then  pending,  and  this 
averment  is  not  traversed.  For  if  the  allegation  was  denied,  tlie 
Solicitor-General,  instead  of  replying  (as  he  has)  that  Fames  was 
nonsuit  on  the  forty-third  day  of  the  term,  should  have  replied 


398  CASES    ON    COMMON-LAW    PLEADING. 

Tiul  del  record.  It  however  appears  that  the  replication  was  not 
pleaded  before  the  sixteenth  day  of  January  last,  fifty-six  days 
after  the  term  commenced.  But  even  if  it  did  not  sufficiently 
appear  that  Eames  was  nonsuit  after  the  plea  in  abatement  was 
filed,  it  would  not  be  material,  as  it  certainly  appears  that  the  civil 
action  was  pending  when  the  indictment  was  returned  and  filed. 

I  believe  that  it  has  been  sometimes  supposed  that  in  pleading 
in  abatement  to  a  second  writ  the  pendency  of  a  former  one,  the 
former  must  be  pending  at  the  time  of  the  plea.  The  entries  of 
pleas  of  this  kind  generally,  but  not  always,  aver  the  then  pendency 
of  the  first  writ :  but  in  examining  the  books  it  is  very  clear  that 
such  averment  is  unnecessary  ;  and  it  is  sufficient  if  the  first  action 
was  pending  when  the  second  writ  was  purchased. 

In  the  39  Hen.  VI.  12,  pi.  16,^  this  point  is  discussed  and  settled 

1  "  As  the  year-books  are  not  frequently  to  be  met  with  in  our  libraries,  the  reporter 
has  thought  that  the  insertion  of  the  following  case  at  large  would  gratify  many  of  the 
profession,  as  a  specimen  of  the  juridical  proceedings  of  former  times,  and  the  rather 
as  its  authority  has  been  frequently  acknowledged,  and  as  it  was  mentioned  witli  so 
mucli  respect  by  his  honor,  the  Cliief  Justice.     39  Hen.  VI.  12,  pi.  16. 

"  '  In  a  writ  of  detinue,  the  plaintiff  by  Choke  counted  of  a  box  sealed  with  charters, 
and  of  one  charter  in  special.  Billing  demanded  judgment  of  the  writ,  because  he  said 
that  heretofore,  viz.  on  the  1st  of  January,  in  the  38th  year  of  the  king  that  now  is, 
the  plaintiff  sued  such  a  writ  of  detinue  as  this  against  the  defendant,  returnable  before 
the  justices  of  the  Common  Bench  here  at  Westminster,  at  the  L^tas  of  St.  Hilary,  the 
process  continued,  and  he  showed  how,  until  the  day  after  ascension  then  next  follow- 
ing, and  the  parties  appeared  in  court  and  the  plaintiff  counted  against  the  defendant 
for  wrongfully  detaining  a  sealed  box  of  charters,  and  of  one  charter  in  special:  which 
writ  wasal)ated,  and  he  shows  how,  and  for  what  cause,  and  also  the  wliole  record  in 
certain,  and  shows  that  they  were  the  same  box,  and  were  the  same  charters  of  which 
he  has  now  counted  :  and  he  saith  that  this  writ  was  purchased  pending  the  other,  and 
he  demands  judgment,  etc. 

"  '  Choke.  This  is  no  plea  without  saying  that  it  is  .still  pending,  and  inasmuch  as 
you  yourself  have  confessed  that  the  other  writ  is  abated,  he  demands  judgment  if  this 
writ  siiall  abate. 

"  '  Prisot.  It  seems  to  me  that  this  writ  shall  abate,  because  it  was  purchased  pend- 
ing the  other,  and  albeit  that  the  other  be  abated,  it  is  no.w  to  no  purpose.  For  the  law 
will  not  suffer  a  man  to  be  impleaded  twice  for  the  same  thing  .s/;hm/  et  semel  by  several 
writs  :  for  in  a  plea  of  land,  if  a  writ  be  purchased  pending  another,  it  shall  abate :  so 
in  detinue,  covenant,  and  writs  of  this  kind,  where  the  certainty  of  the  demand  appears 
by  the  writ.  But  it  is  otlierwise  in  an  action  of  trespass,  for  there  the  certainty  of 
the  thing  doth  not  appear,  no  more  than  in  an  assize,  for  the  writ  there  is  de  llbero 
tenemento,  which  determines  nothing  certain.  So  a  writ  of  trespass  or  an  assize  pur- 
chased ])ending  another  shall  not  abate  without  plaint.  But  if  a  man  has  two  assizes 
pending,  and  he  is  demanded  in  one  assize  and  is  nonsuit,  and  after  he  is  demanded  in 
the  other  assize,  and  he  appears  and  makes  his  plaint,  now  this  writ  shall  not  abate,  al- 
though the  tenant  alleges  that  this  writ  was  purchased  pending  the  other  to  which  he 
was  nonsuit  causa  (jua  sii/ira.  But  if  he  be  demanded  in  the  first  assize,  and  he  ap- 
pear and  make  his  plaint,  if  now  he  will  be  nonsuit  to  the  first  assize,  the  second 
assize  shall  abate,  becau.«e  the  certainty  appears  in  the  plaint  as  well  as  if  it  was 
a  precipe  quod  redf/nt.  And,  sir,  although  this  first  writ  was  abated,  still  the  second 
was  purchased  pending  the  other,  at  which  time  it  was  abatable ;  and  although  he  was 


DILATORY   PLEAS.  399 

with  much  learning  and  ingenuity.  It  was  holden  that  it  must 
appear  of  record  that  the  two  actions  are  for  the  same  cause,  and 
that  the  first  writ  was  pending  when  the  second  was  purchased. 
When  the  certainty  of  the  cause  of  action  does  not  appear  in  the 
writ,  nor  until  the  plaintifi'  has  declared,  if  the  first  action  was  non- 
after  nonsuit  to  the  first  writ,  that  will  not  mai<e  tiiis  writ  good,  which  was  once 
abatal)Ie.     Therefore,  etc. 

"'  Moile.  In  a  plea  of  land  it  is  as  yon  say,  that  if  one  writ  be  purchased  pending 
another,  it  .siiall  abate,  and  that  has  always  been  the  usage.  But  the  usage  is  other- 
wise in  ideas  personal ;  for  it  was  never  holden  to  be  a  plea  in  a  per.sonal  action  to  .say 
that  this  writ  was  purchased  pending  another,  unless  he  said  that  the  otiier  is  still 
pending,  and  then  it  shall  abate  ;  because  the  law  will  not  suffer  a  man  to  be  impleaded 
for  the  same  thing  by  two  divers  writs,  whetiier  in  debt  or  trespass.  But  when  the 
other  is  al)ated,  there  is  now  no  mischief,  and  so  there  is  a  diversity  between  pleas  real 
and  personal. 

"  '  Asiiton.  It  seems  to  me  that  the  writ  shall  not  abate,  unless  the  other  was  still 
pending,  because  there  is  now  no  mischief  when  the  other  is  abated,  for  now  he  is  im- 
pleaded but  by  one  writ,  and  has  but  one  writ  pending  against  him  ;  therefore  there 
is  no  reason  that  the  writ  should  abate.  But  if  the  other  writ  had  been  still  pending, 
there  would  be  reason  to  abate  this  writ,  because  he  shall  not  be  vexed  nor  troubled 
for  the  same  thing  by  two  several  writs,  but  when  the  other  is  abated,  thi.s  mischief 
is  at  an  end,  therefore,  etc. 

" '  Prisot.  There  is  no  other  reason  that  one  writ  of  precipe  quod  reddat  purchased 
pending  another  should  abate,  but  that  he  should  not  be  impleaded  for  the  .same  thing 
by  two  several  writs  ;  and  there  is  the  same  reason  in  a  plea  personal  of  a  thing  certain. 
And  as  to  what  is  said,  there  is  now  no  mischief  because  the  other  writ  is  not  pending, 
it  is  not  so.  For  if  two  several  writs  for  the  same  thing  be  purchased,  then  he  shall 
lose  issues  on  both  writs :  so  whenever  it  ajjpears  tiiat  he  has  twice  been  arrested  ou 
capias,  then  he  has  mischief  by  the  vexation  of  the  process,  as  he  would  by  the  plea, 
and  the  misciiief  is  tlie  same.  And  I  lay  it  down  that  if  one  purchases  two  assizes 
against  me,  hearing  date  the  same  day,  and  returnable  on  the  same  day,  and  the  plain- 
tiff appears  to  both,  both  shall  abate ;  and  so  of  a  precipe  quod  reddat,  and  of  a  plea 
personal.  And  if  one  purchase  two  personal  writs  against  me,  one  of  an  earlier  date 
than  the  other,  and  he  is  nonsuited  to  the  oldest  writ  before  declaration,  the  second 
shall  abate,  so  here.     Therefore,  etc. 

"'  Danby.  It  is  not  so,  if  he  be  nonsuit  before  declaration,  the  second  is  then  good 
enough  ;  because  it  is  not  certain  what  debt  or  charters  he  demands  before  he  count 
by  the  first  writ  which  is  abated.  But  when  he  once  appears  and  declares  in  the  first 
writ,  the  second  writ  is  abated  which  was  purchased  pending  the  first.  And  so  in  your 
case,  if  the  two  writs  bore  the  same  date,  and  were  returnable  the  same  day,  it  is  not 
true  that  l)oth  should  abate  ;  for  if  he  would  be  nonsuit  as  to  one,  the  other  should 
stand  (which  Nedham  granted),  but  in  the  case  at  bar  the  plair.tiff  counted  on  the  first 
writ,  and  this  writ  was  purchased  pending  the  first,  and  the  plaintiff  doth  not  deny 
that  it  was  for  the  same  thing  ;  in  which  case  this  writ  of  necessity  ought  to  abate. 
And  as  to  what  is  said,  that  it  shall  stand  because  the  other  writ  is  abated,  this  is  to  no 
purpose.  For  when  a  writ  is  once  abatable  by  law,  the  plaintiff  can  himself  do  nothing 
to  make  it  good,  and  so  the  writ  shall  abate. 

"  *  Littleton.  The  same  reason  which  you  give  in  a  plea  peraoual  before  declaration 
may  be  given  in  a  plea  real  before  declaration. 

"  'Nedham.  It  is  not  so.  For  ''n  a  plea  of  land,  he  shall  be  summoned  in  the  land 
demanded,  and  by  the  summons  it  will  be  asserted  what  land  he  demands  before  his 
count;  but  it  is  not  so  in  a  plea  per.sonal,  viz.  in  debt  or  detinue,  for  he  will  not 
be  summoned  by  the  debt  in  demsyid,  nor  by  the  chattels  demanded ;  and  therefore  it 
cannot  be  asserted  before  the  count :  and  this  is  the  diversity,  quod  notd.'  " 


400  CASES    ON   COMMOX-LAW    PLEADING. 

suited  before  he  counted,  the  first  writ  could  not  be  pleaded  in 
abatement  of  the  second,  for  it  could  not  appear  from  the  record 
that  the  two  writs  were  for  the  same  cause.  But  if  the  cause  of 
action  appear  with  certainty  in  the  writ,  there  if  the  plaintiff  be 
nonsuit  before  he  counted,  the  second  writ  would  abate.  And  in 
all  cases  when  the  plaintiff  was  nonsuit  to  the  first  writ  after  he 
had  counted,  the  second  should  abate,  if  purchased  pending  the  first. 
And  it  was  not  necessary  that  the  first  writ  should  be  pending  when 
the  plea  was  pleaded  ;  for  if  by  law  it  was  once  abateable,  the  sub- 
sequent nonsuit  could  not  make  it  good. ^ 

This  law  is  recognized  in  5  Co.  61,-Sparry's  Case,  and  in  Gilb. 
Hist,  of  C.  B.  205,  206,  and  cited  in  3  Instr.  Cler.  118.  In  Cro. 
Eliz.  261,  it  is  said  that  an  information  is  pending  as  soon  as  it  is 
brought  into  court,  and  before  process  on  it  issue.  For  the  cause  of 
bringing  it  is  certainly  alleged  in  it,  and  it  is  recorded  as  soon  as 
brought  into  court. 

By  the  course  of  proceedings  in  our  courts,  the  count  being  in- 
serted in,  and  making  apart  of  the  writ,  the  plaintiff  does  not  count 
after  his  appearance  to  his  writ ;  and  if  he  be  nonsuit  at  any  time, 
the  writ  may  be  said  to  be  once  depending.  As  in  nonsuits  at 
common  law,  after  appearance  to  writs  containing  the  cause  of  ac- 
tion in  certainty,  the  writs  were  once  pending  because  the  plaintiffs 
had  appeared,  so  it  would  seem  to  be  necessary  here  that  the  plain- 
tiff should  enter  his  action  before  his  writ  can  be  averred  to  be  pend- 
ing in  court,  so  as  to  abate  a  subsequent  writ.  For  its  pendency 
must  be  a  matter  of  record,  and  there  can  be  no  record  of  a  nonsuit, 
unless  the  plaintiff  be  called  after  he  has  appeared  in  court  and  en- 
tered his  action.  Therefore  a  subsequent  writ  is  not  abateable, 
unless  the  plaintiff  enter  his  action  on  his  prior  writ. 

But  it  is  objected  that  this  rule  of  law  applies  only  to  cases  where 
the  two  writs  are  sued  for  the  same  cause  by  the  same  plaintiff ; 
and  that  it  will  not  apply  to  qui  ^«m  actions  sued  by  different  plain- 
tiffs, or  to  informations  qui  tarn  for  the  benefit  of  different  persons, 
or  to  a  subsequent  indictment  to  recover  the  same  penalty .^ 

The  reason  of  the  law  applies  to  these  cases,  which  is  to  prevent 
a  man  from  being  twice  vexed  for  the  same  cause :  and  the  princi- 
ple, by  applying  the  rule,  certainly  extends  to  these  cases.     The 

1  The  opinions  of  Moile  and  Ashton  are  the  most  reasonahle ;  and  for  authority  in 
support  of  them,  f;ee  Green  v.  Watts,  1  Ld.  Ray.  274  ;  Knight's  Case,  2  Ld.  Ray.  1014  ; 
1  Salk.  329  ;  1  Weut.  8;  Clifford  v.  Cory,  1  Mass.  495;  Marston  v.  Lawrence,  1  Johns. 
Cas.  397  ;  Hawlv.  B.  2,  ch.  26,  s.  63  ;  Doug.  240.     See,  too,  the  precedents  in  pleading. 

2  The  defendant  in  an  indictment  cannot  plead  tlie  pendency  of  the  former  indict- 
ment, founded  upon  the  same  transaction,  iu  abatement.  1  Starkie,  Crim.  Plead.  314, 
2d  ed.  Foster,  104,  106. 


DILATORY   PLEAS.  401 

principle  is,  when  the  prior  action  is  pending,  the  subsequent  writ 
IS  bad  ah  initio  ;  it  is  wrongly  sued  out,  as  not  given  by  the  penal 
statute,  while  another  action  is  pending  for  the  same  cause.  The 
statute  may  give  a  qui  tarn  action,  or  information,  or  an  indictment ; 
but  it  does  not  provide  that  all  these  prosecutions  may  be  pending 
at  the  same  time.  If  it  did,  then  the  pendency  of  the  former  could 
in  no  case  be  cause  to  abate  the  latter,  which  is  not  contended  for. 
When,  therefore,  a  prosecution  given  by  the  statute  is  regularly 
pending,  no  other  prosecution  is,  during  the  pendency  of  the  former, 
authorized  by  the  statute.  Therefore  the  second  prosecution  is  ir- 
regular, and  unauthorized  at  its  commencement :  and  if  once  abate- 
able,  it  seems  very  clear  that  no  subsequent  act  of  the  first  prosecutor, 
after  his  suit  is  pending,  can  make  the  institution  of  the  second 
regular  and  legal. 

It  may  be  said  that  extending  the  rule  to  qui  tarn  actions  and 
informations,  and  to  indictments  on  penal  statutes  to  recover  a 
forfeiture,  may  introduce  fraud  and  covin  :  for  the  first  prosecutor 
may  continue  to  prosecute  until  the  limitation  of  penal  suits  shall 
take  effect,  and  may  then  become  nonsuit,  and  the  second  prosecu- 
tion being  abated,  the  penal  statute  will  be  defeated. 

Let  us  examine  this  objection.  The  second  prosecutor,  when  the 
pendency  of  the  first  is  pleaded  in  abatement,  may  reply  that  the 
first  was  by  fraud  and  covin  between  the  parties,  and  if  the  fraud  be 
found,  the  plea  will  be  avoided.  But  if  a  fraud  not  capable  of  proof 
may  be  presumed,  still  the  objection  will  fail ;  for  the  fraudulent 
first  prosecutor  will  not  become  nonsuit  or  discontinue,  until  the 
second  prosecution  is  in  fact  abated.  Therefore  extending  the  rule 
to  a  nonsuit  after  appearance,  and  before  plea  pleaded,  will  not  tend 
to  introduce  fraud :  neither  will  the  confining  of  the  rule  to  cases 
where  the  former  suit  is  pending  when  the  plea  is  pleaded,  or  when 
the  second  suit  is  abated,  tend  to  exclude  fraud.  For  let  the  rule  be 
settled,  and  fraudulent  parties  will  always  conform  to  it. 

We  are,  therefore,  of  opinion  that  the  plea  is  sufficient  to  abate 
the  indictment,  if  the  averments  in  the  plea  are  regular.  It  is 
averred  that  the  writ  and  indictment  are  for  the  same  cause,  and  to 
recover  the  same  penalty.  Now,  on  comparing  the  plea -and  the 
indictment  together,  if  it  substantially  appears  that  they  are  for 
different  causes,  the  averment  is  bad,  because  it  is  against  the  record. 

The  off'ence  charged  in  the  indictment  is  the  taking  of  unlawful 
interest  on  a  loan  of  400  dollars  to  Ebenezer  Clough  by  a  contract 
to  be  performed  in  ninety  days  from  the  19th  of  August,  1807.  In 
looking  into  the  plea,  the  offence  charged  in  the  declaration  to  the 
first  writ  is  the  taking  of  unlawful  interest  on  a  loan  of  400  dollars 

26 


402  CASES   ON   COMMON-LAW   PLEADING. 

to  Ebenezer  Clough,  by  a  contract  to  be  performed  in  ninety-three 
days  from  the  19th  of  August,  1807.  These  contracts  are  not  the 
same,  but  are  substantially  different.  And  the  averment  that  they 
are  the  same  is  an  averment  against  the  record,  which  the  law  will 
not  allow.  For  this  cause  only,  we  think  the  plea  in  abatement  is 
bad,  and  that  the  defendant  must  answer  further  to  the  indictment. 

If  the  Solicitor-General,  on  looking  into  the  evidence,  should  tind 
that  the  grand  jury  have  mistaken  the  efiect  of  the  contract,  and 
that  in  fact  it  was  to  be  performed  in  ninety  days  with  grace,  he 
will  determine,  whether  the  ends  of  justice  can  be  answered  by 
further  prosecuting  the  indictment.   - 

After  the  opinion  of  the  court  was  thus  delivered,  Sedgwick,  J., 
observed  that  he  had  not  been  able  to  bring  his  mind  to  a  decision 
of  the  point  in  question ;  but  as  the  rest  of  the  court  were  very 
clear,  he  did  not  wish  to  suggest  doubts,  which  might  in  any  degree 
tend  to  weaken  the  authority  of  the  opinion  given.  He  said  he 
did  not  recollect  a  case,  in  which  a  popular  action  had  been  held  to 
abate  an  indictment  for  the  same  cause,  unless  the  civil  action  was 
actually  pending  at  the  time  of  the  plea  pleaded.  He  expressed  an 
apprehension  that  in  consequence  of  this  decision,  the  statute 
against  usury  would  be  virtually  repealed.  Perhaps  this  effect  was 
not  to  be  lamented.  If  the  pendency  of  a  qui  tarn  action  is  to  pre- 
vent a  prosecution  for  usury  by  the  government,  unless  collusion 
can  be  proved,  a  discreet  usurer  will  always  save  himself  from  a 
penalty  to  which  he  apprehends  himself  exposed,  by  procuring  an 
action  to  be  instituted  by  some  confidential  friend,  which  shall  stand 
continued  for  two  years,  and  then  be  discontinued,  and  by  this 
method  absolutely  eviscerate  the  statute.  Perhaps  the  positive  rules 
of  law  furnish  him  this  screen.  If  they  do,  it  is  for  the  legislature 
only  to  remedy  the  evil.  Whether,  however,  they  do  or  not,  he 
ha-d  formed  no  opinion. 

Note.    The  Solicitor-General  afterwards  entered  a  nolo  prosequi 
upon  the  indictment,  being  satisfied  that  the  same  note  was  intended 
in  the  two  several  processes.      Vide  1  Starkie,  Grim.  Plead.  314 ; 
,  Foster,  104-106. 

Note.  "It  may  be  laid  down  as  a  universal  rule,  applicable  botb  to  actions  ex  con- 
tractu and  ex  delicto,  that  if  one  person  sues  alone,  when  the  right  of  action  is  in  two  or 
more,  jointly,  or  if  two  or  more  sue  as  co-plaintiiis  wheu  the  right  of  action  is  in  one 
of  them  only,  the  mistake  is  pleadable  in  abatement.  .  .  .  The  uoujuinder  .  .  .  and 
the  misjoinder  [of  defendant's]  .  .  .  is,  in  all  cases,  pleadable  in  the  same  m.-inner." 
Gould,  PI.,  c.  v.,  sees.  10.3,  104.  As  to  when  such  errors  may  be  availed  of  by  demurrer, 
motion  in  arrest  of  judgment,  or  writ  of  error,  see  Gould,  PL,  c.  v.,  sees.  105-121. 


DILATORY   PLEAS.  403 

Judgments  on  Dilatory  Pleas. 

TOMPSON  V.    COLIER. 

In  the  King's  Bench.     1607. 

Reported  Yelvekton,  112. 

The  plaintiff  declared  on  a  lease  made  by  Robinson  and  Stone  of 
a  messuage  and  forty  acres  of  laud,  in  tbe  parish  of  Stone,  in  the 
county  of  Stafford ;  the  defendant  imparled  to  another  term,  and 
then  pleaded  that  within  the  parish  of  Stone  there  are  three  vills, 
A.,  B.,  and  C,  and  because  the  plaintiff  did  not  show  in  which  of  the 
vills  the  land  lay,  he  demanded  judgment  of  the  bill,  et  quod  oh 
causani  prcedict.  hilla  proedict.  cassetur :  and  the  plaintiff  demurred 
upon  the  plea  ;  and  it  was  adjudged  for  the  plaintiff:  for,  1.  The 
defendant  cannot  plead  in  abatement  of  the  bill  after  an  imparl- 
ance, for  he  has  admitted  it  to  be  good  by  his  entering  into  defence, 
and  by  his  imparlance.  2.  The  matter  of  the  plea  is  not  good 
because  the  defendant  does  not  show  in  which  of  the  vills  the 
messuage  and  forty  acres  lie;  and  that  he  ought  to  do;  for  where 
a  man  pleads  in  abatement,  he  ought  always  to  give  the  plaintiff  a 
better  writ.  Quod  nota.  But  per  tot  curiam  his  plea  does  not  go  in 
bar,  but  only  a  respondeat  ouster.  And  by  Williams,  Just,  the  dif- 
ference is,  that  where  the  plaintiff  demurs  on  a  plea  in  abatement, 
and  where  he  goes  to  issue  upon  it ;  for  if  they  go  to  issue  upon 
such  plea,  and  it  is  found  against  the  defendant,  it  is  peremptory, 
and  he  loses  the  land;  but  upon  a  demurrer  it  is  not  peremptory, 
but  only  a  respondeat  ouster.  Quod  nota.  Vide  22,  1  H.  55  b; 
Foxley's  Case,  5  Co.  111. 

WALLIS    V.    SAVIL  et   al.^ 
In  the  Common  Pleas.     1506. 
Reported  Nelson's  Lutwyciie,  1G. 
Matter  in  abatement  ought  not  to  be  made  the  basis  of  a  judgment  in  bar. 

York,  Ss.   Trespass  against  three  defendants. 

All  of  them  plead  the  general  issue  as  to  part,  and  as  to  the 
residue  they  plead  in  bar,  that  the  plaintiff  brought  an  action,  etc., 
against  two  of  the  three  defendants  and  others,  for  the  same  tres- 

1  Cf.  same  case,  "  Demurrers,  Special  and  Geueral,"  where  a  part  of  tlie  case  not 
quoted  here  is  reported. 


404  CASES   ON    COMMON-LAW    PLEADING. 

pass,  and  they  conclude  their  plea  in  bar  ;  and  it  was  held  ill,  because 
all  three  of  the  defendants  had  pleaded  an  action  depending  against 
two  of  them,  and  said  nothing  to  the  third ;  and  though  the  matter 
itself  was  properly  pleadable  in  abatement  and  not  in  bar,  the 
judgment  was  quod  (the  plaintiff)  recuperet  damna,  etc. 

And  to  prove  that  judgment  hnal  shall  be  given  upon  a  plea  in 
bar,  where  the  subject-matter  is  only  in  abatement,  these  cases 
were  cited. 

Ss.  A  man  was  bound  in  an  obligation  to  three  persons,  and  two 
of  them  bring  an  action  of  debt;  the  defendant  pleaded  in  bar, 
that  he  became  bound  to  these  two,  an'd  to  another.  This  is  matter 
in  abatement  only,  but  yet  judgment  final  was  given.  [Cro.  Eliz. 
202 ;  Sid.  189.] 

So  where  debt  was  brought  against  an  executor,  the  defendant 
pleaded  in  bar  that  he  was  administrator ;  this  sliould  have  been 
pleaded  in  abatement,  but  being  in  bar  the  plaintiff  had  judgment 
quod  recuperet  dehitum,  etc.     1  Mod.  239. 

Style  in  his  Practical  Eegister  tells  us,  that  a  plea  which  is 
properly  in  bar  may  be  pleaded  by  way  of  abatement ;  and  that 
which  is  proper  in  abatement  may  be  pleaded  in  bar ;  but  he  says, 
this  does  not  hold  in  all  cases ;  and  I  think  it  holds  in  very  few, 
for  if  it  should  be  allowed,  it  would  certainly  introduce  a  great  dis- 
order in  pleading. 

This  is  my  Lord  Coke's  opinion,  that  good  matter  ought  to  be 
pleaded  in  good  form,  otherwise  great  advantages  may  be  lost, 
which  appears  plainly  in  this  case,  where  good  matter  was  pleaded 
in  an  ill  form  ;  that  is,  it  was  pleaded  in  bar,  which  is  called  by  Brac- 
ton,  and  other  old  writers,  exeeptio  peremptoria,  in  which  judgment 
final  may  be  given,  and  that  destroys  the  action  forever ;  whereas 
if  it  had  been  pleaded  in  abatement  (as  it  ought),  then  the  judgment 
would  have  been  given  against  the  plaintiff ;  his  action  would  have 
only  ceased  for  a  time,  and  he  might  begin  again  by  a  new  writ  or 
plaint,  as  the  case  required. 

/  EICHORN   V.  LE'MAITRE. 

v/  Ix  THE   COMMOX   Ple.a.s.      1768. 

Reported  2  Wilson,  367. 

But  if  an  issue  of  fact  on  a  dilatory  plea  is  found  against  the  party  pleading 
it,  the  judgment  is  final. 

Action  upon  the  case  upon  several  promises  for  goods  sold  and 
delivered  ;  the  defendant  pleaded  misnomer  in  his  Christian  uapie  in 


DILATORY    PLEAS.  405 

abatement ;  the  plaintiff  replied,  that  the  defendant  was  called  and 
known  as  well  by  the  name  of  A.  L.  as  by  the  name  of  B.  L.,  and 
thereupon  issue  was  joined  ;  upon  the  trial  the  jury  found  a  verdict 
for  the  plaintiff,  but  did  not  assess  any  damages.     And  now  it  was 
moved  on  tlie  behalf  of  the  plaintiff,  that  a  writ  of  inquiry  might 
issue  to,  assess  the  damages ;  for  that  the  defendant's  plea  being 
found  to  be  false,  the  judgment  to  be  given  against  him  in  this  case 
must  be  peremptory  and  final ;  and  there  is  no  difference  whether 
the  plea  pleaded  be  in  bar  or  abatement ;  and  for  this  purpose  was 
cited  Bro.  tit.  Peremptorie,  Long  5  to  Ed.  IV.  90,  b,  where  it  is 
agreed  for  clear  law,  "  That  if   a  dilatory  plea  be  pleaded  to  the 
writ,  or  to  the  count,  or  to  the  action  vel  hujusmodi,  and  they  join 
issue,  there  always,  if  the  issue  jjass  against  the  tenant  or  defendant 
in   an  action  real  or  personal,  it  is  peremptory  to  the  tenant  or 
defendant."     And  the  Long  5  to  Ed.  IV.  90,  b,  says,  "  it  is  peremp- 
tory, be  the  issue  upon  matter  dilatory  or  upon  matter  in  bar."   For 
the  defendant  it  was  said,  that  although  in  real  actions  when  issue 
is  joined  upon  a  dilatory  plea,  and  tried  by  a  jury,  the  judgment 
shall  be  final  according  to  1  Lev.  163,  1  Sid.  252,  yet  iu  a  personal 
action,  as  this  is,  there  shall  be  a  respondeas  ouster  ;  and  therefore 
a  writ  of  enquiry  of  damages  cannot  be  awarded.     But,  secondly,  it 
was  said  for  the  defendant,  that    supposing  the   judgment  to    be 
given  upon  this  issue  found  against  the  defendant  must  be  final  and 
peremptory,  yet  the  omission  of  the  jury  in  not  finding  damages 
in  this  case  cannot  be  supplied  by  a  writ  of  enquiry  of  damages, 
because  if  the  jury  upon  the  writ  of  enquiry  should  assess  outragemis 
damages,  an  attaint  would  not  lie,  that  being  only  an  inquest  of 
office;  whereas  an  attaint  would  He  against  the  jury  who  tried  tlie 
issue  if  they  had  given  outrageous  damages  in  this  case ;  and  the 
rule  laid  down  in  Cheney's  Case,  10  Rep.  119,  is,  that  the  court  will 
never  ex  officio  award  a  writ  of  enquiry  to  supply  the  omission  in 
the  finding  of  the  jury  upon  the  trial,  in  a  matter  whereupon  an 
attaint  may  be  brought ;  and  therefore  if  the  judgment  in  this  case 
is  to  be  final  and  peremptory,  the  verdict  is  insufficient  for  the 
court  to  give  judgment  upon,  and  a  writ  of  venire  facias  de  novo  ■ 
ought  to  be  awarded. 

Curia.  The  first  question  is,  whether  the  court  upon  this  issue 
must  pronounce  a  final  and  peremptory  judgment,  and  if  they  must, 
the  second  question  is,  whether  they  can  ex  officio  award  a  writ  of 
enquiry  to  supply  the  omission  of  die  jury,  or  whether  a  writ  of 
venire  facias  de  novo  must  not  go;  and  we  are  all  opinion  that  the 
judgment  must  be    peremptory,  and  that    there  is  no  difference 


406  CASES   ON   COMMON-LAW   PLEADING. 

whether  the  issue  be  joined  upon  a  fact  in  a  plea  in  abatement,  or 
in  a  plea  in  bar,  for  wherever  a  man  pleads  a  fact  that  he  knows 
to  be  false,  and  a  verdict  be  against  him,  the  judgment  ought  to  be 
final,  and  every  man  must  be  presumed  to  know  whether  his  plea 
be  true  or  false ;  but  upon  a  demurrer  to  a  plea  in  abatement  there 
shall  be  a  respondeas  ouster,  because  every  man  shall  not  be  pre- 
sumed to  know  the  matter  of  law,  which  he  leaves  to  the  judgment 
of  the  court. 

As  to  the  second  question,  we  are  all  of  opinion  that  a  writ  of 
inquiry  cannot  be  awarded  to  supply  the  omission  of  the  jury  in 
not  finding  damages,  but  that  a  venire  facias  de  yiovo  must  go; 
"for  where  a  man  may  have  an  attaint,  there  no  damages  shall  be 
assessed  by  the  court  if  they  be  not  found  by  the  jury."  4  Leon. 
245,  Godb.  207.  This  is  an  assumpsit  in  which  damages  are  the 
whole  object  of  the  writ  and  suit,  and  though  issue  be  joined 
upon  a  fact  in  abatement,  yet  as  to  the  defendant  it  is  conclusive 
to  all  intents  and  purposes,  and  involves  the  damages  upon 
finding  the  fact  against  him,  and  if  outrageous  damages  had  been 
given,  an  attaint  would  have  laid ;  "  In  trespass,  the  defendant 
pleaded  an  arbitrement,  and  it  was  found  against  him;  the  court 
held  that  in  trespass  the  whole  recovery  is  damages,  which  cannot 
be  taxed  but  by  the  inquest  who  passed  upon  the  principal  issue." 
11  Hen.  IV.  57,  b.     A  venire  facias  de  novo  was  awarded. 

TIMOTHY   GOOD   v.  JAMES   LEHAN. 

Supreme  Judicial  Court,  Massachusetts.     1851. 

Reported  8  Gushing,  301. 

This  was  a  writ  of  review,  sued  out  from  the  Court  of  Common 
Pleas  on  the  28th  of  November,  1848,  to  reverse  a  judgment  re- 
covered in  that  court  at  the  September  Term,  1848,  by  Lehan,  in 
an  action  brought  by  him  against  Good,  in  which  action  Good 
was  defaulted. 

At  the  December  Term,  1849,  of  the  Court  of  Common  Pleas, 
Lehan  pleaded  in  abatement  of  the  writ  of  review,  that  the  same 
had  been  materially  altered  and  changed  since  the  issuing  of  the 
same.  Upon  this  fact  of  the  material  alteration,  issue  was  joined 
and  submitted  to  the  jury,  who  returned  a  verdict,  that  the  writ 
had  not  been  materially  altered  and  changed  since  the  issuing  of 
the  same,  in  manner  and  form  as  the  defendant  in  his  plea  in 
abatement  had  alleged.  The  plaintiff  in  review  then  moved  for 
judgment  on  the  verdict ;  and  on  this  motion  the  case  was  con- 


.  DILATORY   TLEAS.  407 

tinned  to  the  March  Term,  1850,  when  the  court  ordered  that  the 
parties  should  replead ;  but  the  defendant  in  review  refusing  to 
comply  with  this  order,  the  court  gave  judgment  for  the  plaintiff  in 
review.  And  the  defendant  in  review  alleged  exceptions  to  the 
ruling  and  orders  of  the  court. 

B.  F.  Butler,  for  the  defendant  in  review. 

F.  Hilliard,  for  the  plaintiff  in  review. 

Fletcher,  J.  It  is  a  well-settled  and  familiar  principle  of  law, 
that  if  an  issue  of  fact  is  joined  to  the  jury  on  a  plea  in  abate- 
ment, and  found  for  the  plaintiff,  a  judgment  in  chief  should  be  en- 
tered in  his  favor.  This  rule  extends  to  all  dilatory  pleas  in  civil 
actions.  The  plaintiff,  therefore,  in  such  cases  should  be  prepared 
to  prove  his  damages,  but  if  the  damages  should  not  be  found  by 
the  jury  to  whom  the  issue  of  fact  is  submitted,  they  may  be  as- 
sessed by  the  court,  as  upon  default,  or  the  question  of  damages 
may  be  submitted  to  another  jury.  The  omission  to  have  the  dam- 
ages assessed  by  the  jury,  who  try  the  issue  of  fact,  furnishes  no 
sufficient  ground  for  setting  aside  the  verdict.  Boston  Glass  Manu- 
factory V.  Langdon,  24  Pick.  49  ;  Frye  v.  Hinkley,  6  Shepl.  320 ;  2 
Greenl.  Ev.  s.  27 ;  Howe's  Prac.  215  ;  Gould  PI.  300.  This  case 
very  clearly  comes  within  this  well-established  principle.  Here 
was  an  issue  of  fact  on  a  plea  in  abatement  submitted  to  the  jury 
and  found  for  the  plaintiff,  and  judgment  in  chief  should,  of  course, 
have  been  entered  for  the  plaintiff. 

The  exceptions  of  the  defendant  are  therefore  so  far  sustained  as 
to  set  aside  all  the  rulings,  orders,  and  proceedings  of  the  court  sub- 
sequent to  the  verdict,  and  the  action  will  stand  in  this  court  open 
to  a  motion  on  the  part  of  the  plaintiff  for  judgment  in  chief  on  the 
verdict. 

PLEA   IN  ABATEMENT. 

In  the  K.  B.  (or  C.  P.) 

Term,  48  Geo.  III. 

C.  D.  '\  And  the  said  C.  D.  in  his  person,  (or  "b}^  G.  H.  liis  attor- 
uts.  >  ney,")  comes  and  defends  tlie  wrong  and  injury,  when,  &c., 
A.  B.  j  and  prays  judgment  of  the  said  bill  (or  "  writ")  of  the  said  A. ; 
because  he  says  that  the  said  A.,  before  and  at  the  time  of  the  com- 
mencement of  this  suit,  was  and  still  is  married  to  one  E.  F.,  then  and 
yet  her  husband,  who  is  still  living,  to  wit,  at,  &c.,  aforesaid  ;  and  this 
he  the  said  C.  D.  is  ready  to  verify;  wherefore,  because  he  the  said 
E.  F.  is  not  named  in  the  said  bill  (or  "  writ")  of  the  said  A.,  the  said 
C.  D.  prays  judgment  of  the  bill  (or  "writ")  aforesaid,  and  the  same 
may  be  quashed,  &c.  (Add  the  affidavit  of  the  truth  in  substance.) 
2  Chit.  PI.  414. 


CHAPTEE   IX. 

PLEAS    IN    BAK. 

I.    The  General  Issue. 
II.    Pleas  in  Confession  and  Avoidance. 
III.    Replication  de  Injuria  and  Special  Traverse. 

"  Barre  is  a  word  common  as  well  to  the  English  as  to  the  French, 
of  which  commeth  the  nowne,  a  har,  harra.  It  signifieth  legally  a 
destruction  forever,  or  taking  away  for  a  time  of  the  action  of  him 
that  right  hath.  And  harra  is  an  Italian  word,  and  signifieth  barre, 
as  we  use  it ;  and  it  is  called  a  plea  in  harre,  when  such  a  barre  is 
pleaded."     Co.  Litt.  372  a. 

I.   THEORY  OF   THE   GENEEAL   ISSUE. 

The  contrast  between  the  cumbersome  declarations  of 
the  common  law  and  the  sharp,  clear  declarations  of  modern 
practice  has  already  appeared.  Similar,  almost  identical, 
in  material  averments,  the  chief  difference  between  them  is 
in  the  manner  of  statement,  rather  than  in  the  matter 
stated.  Little  wonder,  then,  that  even  ancient  lawyers 
grow  impatient  at  the  length  of  their  pleadings.     Thus : 

MILWARD   V.   WELDEN. 

The  Transactioxs  of  the  High  Court  of  Chancery.     1566. 
Eeported  Tothill's  Chancery  Keports,  101. 

Milward  contra  Welden,  the  plaintiff  for  putting  in  a  long  repli- 
cation was  fined  ten  pounds,  and  imprisoned,  and  a  hole  to  be  made 
through  the  replication,  and  hanged  about  his  neck,  and  he  to  go 
from  bar  to  bar,  in  8  Eliz.  li.  P).  fo.  678. 

[B  has  slandered  A.  A,  suing  at  the  common  law,  brings  his 
cumbersome  action  on  the  case  for  words.  His  declaration  is 
necessarily  long,  abounding  in  innuendoes  and  colloquia.    To  defend 


PLEAS    IN   BAR.  409 

word  by  word,  to  say,  "  Nay  "  to  the  very  words  of  that  declaration, 
will  be  a  long,  hard  task,  and  parchment,  eyesight,  and  time  are 
valuable  to  the  pleader.  The  pleader  will  not  defend  word  by 
word.  He  will  use  the  short,  simple  formula  which  is  designated 
as  the  general  issue,  and  denominated,  "  Not  guilty." 

Under  the  plea  of  "  Not  guilty  "  he  may  introduce  defences 
appropriate  to  the  meaning  of  the  words.  He  may  show  that  he 
did  not  speak  them.  But  if  he  wishes  to  say,  "  I  confess  that  I 
spoke  the  words,  but  I  spoke  them  forty  years  ago,  and  the  statute 
of  limitations  bars  any  action  against  me  for  their  speaking,"  he  is 
not  saying  in  substance,  "  Not  guilty  ;  "  he  is  saying,  "  Guilty,  but 
I  have  a  defence;"  and  so  for  him  the  general  issue  will  be  a 
useless  plea,  and  it  will  go  hard  with  him  if  he  pleads  it. 

We  shall  see  that  each  action  (covenant  possibly  excepted)  has 
its  general  issue  ;  that  if  we  ask  these  general  issues  what  evidence 
may  be  introduced  under  them,  and  then  look  at  their  form  for 
answer,  sometimes  the  answer  will  be  true  ;  and  sometimes,  because 
the  scope  of  the  plea  has  been  distorted,  the  answer  will  be  false. 

What  the  several  general  issues  are,  and  what  evidence  maybe  intro- 
duced under  them,  is  to  be  gathered  from  the  following  pages.  —  Ed.] 

"  Et  sHls  sont  a  issued  Issue,  exitus,  a  single,  certaine,  and  ma- 
terial! point  issuing  out  of  the  allegations  or  pleas  of  the  plaintife 
and  defendant,  consisting  regularly  upon  an  affirmitive  and  nega- 
tive to  be  tried  by  twelve  men.  And  it  is  twofold,  a  special  issue, 
as  here  in  the  case  of  Littleton ;  or  generall,  as  in  trespasse,  not 
guilty,  in  assise,  nul  tort  nul  disseisin,  &c.  And  as  an  issue  naturall 
commeth  of  two  several  persons,  so  an  issue  legal  issueth  out  of  two 
several  allegations  of  advers  parties. 

"  And  to  make  our  bookes  more  easie  to  be  understood  concerning 
this  pomt,  it  IS  good  to  set  down  some  necessary  rules  (among  many 
other)  concerning  joyning  of  issues.  An  issue  being  taken  gen- 
erally referreth  to  the  count,  and  not  to  the  writ.  As  in  an  account 
the  writ  chargeth  him  generally  to  be  his  receiver,  the  count  chargeth 
him  specially  to  be  his  receiver  by  the  hands  of  T. :  the  defendant 
pleadeth,  that  he  was  never  his  receiver  in  manner  and  forme,  &c., 
this  shall  referre  to  the  count,  so  as  he  cannot  be  charged  but  by 
the  receipt  by  the  hands  of  T. 

"  A  special  issue  must  be  taken  in  one  certain  material!  point, 
which  may  be  best  understood,  and  best  tryed.  .  .  . 

"  An  issue  joyned  upon  an  absque  hoc,  &c.,  ought  to  have  an  affirm- 
itive after  it.  Two  affirmitives  shall  not  make  an  issue,  unlesse  it  be 
left  the  issue  should  not  be  tried.  ... 


410  CASES   ON    COMMON-LAW    PLEADING. 

"  Where  the  issvie  is  joyned  on  the  part  of  the  defendant,  the  en- 
try is,  et  de  hoe  ponit  se  super  patriam ;  but  if  it  be  of  the  part  of 
the  plaintife,  the  entry  is,  et  hoc  jjetit  quud  inquiratur per  patriam." 
Co.  Litt.  126  a. 

"  One  original  exception  to  the  above  general  rule,  as  to  the  for- 
mation of  issues,  occurs  in  the  instance  of  a  writ  of  rioht.  The  fjen- 
eral  issue  to  the  count  upon  that  writ  is,  and  ever  has  been,  formed 
by  two  affirmatives :  The  averment  on  one  side  being,  that  the  de- 
mandant has  greater  right  than  the  tenant;  and  on  the  other,  that 
the  tenant  has  greater  right  than  the  demandant  —  or,  more  pre- 
cisely, the  demandant  'demands'  the  tenements  as  his  right  and 
inheritance ;  and  the  tenant,  by  way  of  denial,  prays  recognition  to 
be  made,  whether  he  himself,  or  the  demandant,  has  greater  right, 
etc.  But  by  reason  of  the  irregular  and  imperfect  form  of  this 
plea,  it  is  technically  called,  '  the  mise,'  as  distinguished  from  gen- 
eral '  issues,'  strictly  so  called."     Gould,  Pleading,  304. 

"  The  other  anomalous  issue,  .  .  .  before  referred  to,  occurs  in  the 
general  plea  of  denial,  to  a  count  in  dower ;  which,  to  the  extent  of 
the  interest  demanded,  is  strictly  analogous  to  a  count  upon  a  writ 
of  right.     The  count  in  dower  merely  '  demands  the  third  part  of 

acres  of  land,  etc.,  as  the  dower '  of  th^  demandant,  etc. ;  and 

the  general  issue  is,  that  J.  S.  was  not  seised  of  such  estate,  etc. :  a 
mode  of  negation  that  is  merely  argumentative."  Gould,  Pleading, 
305. 

"  These  two  anomalies  appear  to  form  the  only  original  exceptions 
to  the  general  rule,  that  every  issue  must  consist  of  a  direct  affirma- 
tive and  a  direct  negative.  And  the  only  reason  for  these  excep- 
tions would  seem  to  be,  that  they  are  conformable  to  the  ancient 
precedents."     Gould,  Pleading,  305. 

"  Thus,  if  a  defendant  pleads  that  his  co-tenant  is  dead ;  a  replica- 
tion that  he  is  '  alive,'  does  not  form  a  proper  issue.  .  .  .  The  rep- 
lication should  be,  that  the  co-defendant  '  is  not  dead ; '  or  that  he 
is  alive,  without  this,  that  he  is  dead."     Gould,  Pleading,  303. 

"Pleadings  which  amount  to  the  general  issue  are  not  to  be  al- 
lowed ;  but  the  general  issue  is  to  be  entered."     Co.  Litt.  303  b. 

"  The  general  issue  is  the  extreme  limit  reached  by  modern  courts 
in  abbreviating  and  simplifying  the  ancient  practice  in  pleading. 
"  The  general  issues  now  in  use  are  the  following : 
"  In  personal  actions  ex  delicto  in  general,  whether  sounding  in 
trespass  or  case,  and  whether  founded  on  misfeasance  or  nonfeas- 
ance, and  including  ejectment,  the  general  issue  is, '  not  guilty.' 


PLEAS    IN    BAE.  •  411 

"  In  replevin  the  general  issue  is  non  cepit,  which  puts  in  issue  the 
taking,  and  does  not  authorize  a  judgment  of  retorno  hahendo ;  or  non 
detinet,  as  the  wrongful  detention  is  by  statute  in  some  States  the 
wrongful  act. 

"  In  disseisin,  7i2il  tort  nul  disseisin. 

"In  detinue,  non  detinet. 

"  In  debt  on  a  specialty,  non  est  factum,  which  puts  in  issue  only 
the  execution  of  the  deed. 

"  In  debt  on  judgment  or  recognizance,  nid  tiel  record. 

"  In  debt  on  a  penal  statute  the  more  appropriate  general  issue  is 
nil  debet,  because  it  corresponds  to  the  form  of  the  action.  But  as 
the  object  of  the  action  is  to  enforce  a  penalty  for  an  alleged  offence, 
it  seenjs  that  not  guilty  may  be  substituted  for  nil  debet. 

"  In  covenant  broken,  the  general  issue  is  the  same  as  in  debt  on 
a  specialty,  —  non  est  factum  ;  or  at  least  this  is  the  only  general 
plea  which  goes  in  bar  of  tlie  action. 

"...  In  assumpsit  the  general  issue  is  '  non  assumpsit,'  or  when 
the  action  is  against  an  executor  or  administrator  that  the  said 
E.  E.,  deceased,  '  (the  testator  or  intestate)  "  did  not  undertake  or 
promise,"  etc.  "  Not  guilty  "  formerly  was  also  held  to  be  a  proper 
general  issue  in  assumpsit,  because  the  action,  being  entitled  tres- 
pass on  the  case,'  was  deemed  to  partake  of  the  nature  of  an  action 
ex  delicto.  But  as  the  action  is  in  substance  founded  exclusively 
on  contract,  the  last-mentioned  plea  is  not  now  considered  as  a 
proper  answer  to  it,  but  is  still  held  to  be  aided  by  verdict  as  being 
only  an  informal  issue. 

"  In  actions  of  assumpsit,  whatever  shows  that  a  complete  satis- 
faction has  been  received  by  the  plaintiff  may  be  given  in  evidence 
under  the  general  issue. 

"  In  debt  for  rent  on  a  demise,  rien  en  arrere  (nothing  in  arrear) 
as  well  as  nil  debet,  is  a  good  general  issue ;  for  the  former  plea,  as 
well  as  the  latter,  directly  denies  that  any  rent  is  due,  and  is  there- 
fore a  direct  denial  of  the  alleged  debt. 

"...  But  in  covenant  broken  for  rent,  in  which  the  covenant 
itself  is  set  out  and  the  action  founded  upon  it,  rien  en  arrere  is  not 
a  good  plea,  because  it  impliedly  confesses  both  the  covenant  stated 
and  the  breach,  and  alleges  nothing  in  avoidance  of  either ;  whereas 
in  the  preceding  case  of  debt  for  rent,  though  reserved  by  deed,  it 
is  neither  necessary  nor  usual  to  allege  the  deed,  and  if  alleged  it 
is  but  inducement,  and  therefore  need  not  be  directly  answered  in 
pleading.  And  the  gist  of  the  action  of  debt  being  the  mere  fact  of 
rent  in  arrear,  the  plea  of  nil  debet  or  rien  en  arrere,  as  it  is  a  direct 
denial  of  that  fact,  is  a  proper  general  issue. 


412  CASKS    ox    COMMOX-LAW    PLEADING. 

"  On  a  similar  princiijle  to  that  which  governs  in  covenant  broken, 
nil  debet  is  not  a  good  plea  to  debt  on  bond,  and  the  plea  is  ill  on 
general  demurrer ;  it  being  the  nature  of  the  plea,  and  not  the  man- 
ner of  pleading  it,  that  is  defective."  Gould,  Pleading,  300  [Hamil- 
ton's ed.  1899J. 


Sectiox  I. 
DEBT. 

"  Under  the  plea  of  nil  debet,  the  defendant  may  prove  at  the 
trial,  coverture  when  the  promise  was  made,  lunacy,  duress,  in- 
fancy, release,  arbitrament,  accord  with  satisfaction,  payment,  a 
want  of  consideration  for  the  promise,  failure  or  fraud  in  the  con- 
sideration, and  in  short,  anything  which  shows  that  there  is  no 
existing  debt  due.  The  statute  of  limitations,  bankruptcy,  and 
tender  are  believed  to  be  the  only  defences  which  may  not  be 
proved  under  this  plea,  and  they  are  excepted  because  they  do  not 
confess  that  the  debt  is  owing,  but  insist  only  that  no  action  can  be 
maintained  for  it."  ^     4  Minor's  Institutes,  641. 


WARNER   V.   WAIXSP^ORD. 

In-  the  King's  Bench.     Between  1G03  and  1625. 

Reported  Hobart,  127. 

The  purpose  of  the  general  issue. 

"  Sir  Henry  Warner  brought  an  action  of  debt  against  Wainsford, 
administrator  of  Kirby,  who  pleaded  that  the  intestate  was  indebted 
unto  hiru  by  divers  obligations  (and  recites  them),  to  the  sum  of 
£80,  and  that  goods  to  that  value,  and  not  above,  came  to  his 
hands,  which  he  detains  for  his  debt,  and  that  he  had  nothing 
ultra.  The  plaintiff  demurred  in  law,  because  it  amounted  unto 
the  general  issue  of  pleinement  administer.  But  the  better  opinion 
of  the  court  was,  that  this  is  no  cause  of  demurrer,  for  the  plea  is 
sufficient ;  and  besides  it  is  some  matter  in  law,  which  hath  been 
allowed  always  to  be  pleaded  especially,  and  not  left  to  a  jury ;  and 
the  reason  for  pressing  a  general  issue  is  not  for  insufficiency  of  the 
plea,  but  not  to  make  long  records  when  there  is  no  cause,  which 

1  Qv.  Should  not  set-off  have  been  included  ?  True,  this  partakes  of  the  nature 
of  a.  declaration  rather  than  of  a  plea,  but  it  is  certainly  a  defence.  —  Ed. 


PLEAS    IN    BAR.  413 

is  matter  of  discretion,  and  therefore  it  is  to  be  moved  to  the  court, 
and  not  to  be  demurred  upon." 


MILLS   ASSIGN'   VIC   v.   BOND. 
In  the  King's  Bench.     1720. 
Kepokted  Fortescue,  303. 
The  general  issue  to  a  writ  of  debt  on  a  bond  is  not  nil  debet. 

A  condition  of  a  bond  was  (in  an  action  upon  a  bail-bond)  to 
appear  Die  Sahhati  'prox'  post  Odah'  pur',  and  the  term  ended  on 
Friday,  which  was  the  day  before ;  and  this  appeared  in  the  decla- 
ration brought  by  the  assignee  of  the  bail  bond  ;  and  the  defendant 
pleaded  nil  debet  to  the  bond,  and  the  plaintiff  demurs. 

Fer  cur' :  Nil  debet  is  no  plea  to  a  bond,  but  writ  to  appear  out 
of  term  is  a  void  writ,  and  so  is  the  condition  of  the  bond  ;  and  so 
plaintiff'  has  no  cause  of  action  on  his  own  showing. 

ANONYMOUS. 

In  the  Common  Pleas.     1753. 

Reported  2  Wilson,  10. 

Debt  upon  a  bond,  nil  debet,  and  a  general  demurrer ;  and  it  was 
insisted  by  Sergeant  Draper  for  the  defendant,  that  nil  debet  to  a 
bond  was  good  upon  a  general  demurrer,  and  was  only  a  jeoffail 
and  matter  of  form,  that  after  a  verdict  it  will  make  a  final  end 
between  the  parties,  let  the  verdict  be  which  way  it  will.  Scd  per 
curiam.  It  is  naught  upon  a  general  demurrer,  though  perhaps  it 
might  have  been  helped  after  a  verdict. 

Judgment  for  the  plaintiff. 

ANONYMOUS. 
Coram  Holt,  C.  J.     At  Xisi  Puius  at  Heutfokd.     1690. 
Reported  1  Salkeld,  278. 
Theory  of  the  plea  of  ttil  debet. 

"  It  was  adjudged,  per  Holt,  C.  J.  That  in  debt  for  rent,  upon  nil 
debet  pleaded,  the  statute  of  limitations  may  be  given  in  evidence, 
for  the  statute  has  mnde  it  no  debt  at  the  time  of  the  plea  pleaded, 
the  words  of  which  are  in  the  present  tense ;  but  in  case  of  non 


414  CASES    ON    COMMON-LAW   PLEADING. 

assumpsit,  the  statute  of  limitations  cannot  be  given  in  evidence, 
for  it  speaks  of  a  time  past,  and  relates  to  the  time  of  making  the 
promise." 

CHAPPLE   V.  DURSTON. 

Exchequer  of  Pleas.     1830. 
Reported  1   Crompton  and  Jervis,  1. 
To  plead  the  statute  of  limitations  is  not  to  deny  an  existing  debt. 

This  was  an  action  of  debt  upon  a  -money  bond,  a  promissory 
note,  and  the  usual  money  counts.  The  defendant  pleaded,  amongst 
other  things,  to  the  count  upon  the  bond,  a  set-oli',  and  a  similar 
plea  to  the  other  counts ;  to  which  the  plaintiff  replied  that  he  was 
not  indebted  to  the  defendant  7nodo  et  forma  as  in  those  pleas  was 
alleged. 

At  the  trial,  before  Tindal,  C.  J.,  at  the  Summer  Assizes  for  the 
county  of  Somerset,  1829,  it  appeared  that  there  was  due  to  the 
plaintiff  upon  the  bond,  for  principal  and  interest,  the  sum  of 
£77  10s.,  and  that  the  plaintiff  owed  the  defendant  £20  for  rent 
due  at  Lady-day,  1822.  The  latter  sum  the  defendant  claimed  to 
set  off  against  the  demand  of  the  plaintiff ;  but  the  plaintiff  con- 
tended that  this  debt  was  barred  by  the  statute  of  limitations,  and 
that  he  was  entitled  to  take  advantage  of  the  statute,  although  he 
had  not  specially  replied  it.  The  Lord  Chief  Justice  directed  the 
jury  to  find  a  verdict  for  the  plaintiff'  for  £57  10s.,  and  gave  the 
plaintiff  leave  to  move  to  increase  that  verdict,  should  this  court  be 
of  opinion  that  he  could  take  advantage  of  the  statute  under  his 
general  replication. 

In  pursuance  of  this  leave,  Erie,  in  Michaelmas  Term  last,  ob- 
tained a  rule,  calling  upon  the  defendant  to  show  cause  why  the 
verdict  should  not  be  increased  by  the  sum  of  £20 ;  against  which 

Erskine  showed  cause.  The  statute  of  limitations  does  not  de- 
stroy the  debt,  but  merely  bars  the  remedy;  Quantock  v.  England, 
5  Bur.  2628,  S.  C.  BL  702 ;  for  if  it  did  operate  as  an  extinguish- 
ment of  the  debt,  in  no  form  of  action  need  the  statute  be  spe- 
cially pleaded,  and  no  promise  without  a  fresh  consideration  would 
be  sufficient  to  revive  a  debt  of  longer  standing  than  six  years. 
It  is  therefore  a  matter  of  law  which  does  not  go  to  the  gist  of  the 
action,  but  to  the  discharge  of  it,  and  as  such  must  be  pleaded. 
B.  N.  P.  152.  Indeed,  it  is  admitted,  that,  in  assumpsit,  the  stat- 
ute of  limitations  must  be  pleaded;  Lee  v.  Eogers,  1  Lev.  110; 


PLEAS   IN    BAR.  415 

see  1  Wms.  Saimd.  283,  n.  (2);  Duppa  v.  Mayo;  but  a  distinc- 
tion, unfounded  in  principle,  has  been  drawn  between  assumpsit 
and  debt.  Thus,  in  Draper  v.  Glassop,  1  Lord  Eaym.  153,  it  was 
said,  per  Holt,  C.  J :  "  If  the  defendant  plead  non  assumpsit,  he 
cannot  give  in  evidence  the  statute  of  limitations,  because  the  as- 
sumpsit goes  to  the  prseter  tense ;  but  upon  nil  debet  pleaded  the 
statute  is  good  evidence,  because  the  issue  is  joined  per  verba  de 
prcesenti,  and  without  doubt  )iil  debet  by  virtue  of  the  statute  ;  and 
it  is  no  debt  at  this  time,  though  it  was  a  debt."  The  same  rule 
was  adjudged  in  an  anonymous  case  reported  in  1  Salkeld,  278,  but 
these  cases  obviously  proceed  upon  the  notion,  now  exploded,  that 
the  statute  of  limitations  destroys  the  debt ;  for,  if  the  distinction 
between  the  praster  and  present  tense  w^ere  well  founded,  nothing 
could  be  given  in  evidence,  under  the  plea  of  no7i  assumpsit,  which 
occurred  subsequently  to  the  promise ;  whereas,  not  only  facts  to 
show  that  no  such  promise  as  that  stated  in  the  declaration  was 
made,  or  that  the  promise  was  void  at  the  time,  by  reason  of 
duress,  infancy,  or  coverture,  but  also  facts  to  show  that  no  cause 
of  action  subsisted  at  the  commencement  of  the  suit,  as  accord  and 
satisfaction,  a  release,  and  the  like  occurring  after  the  promise,  may 
be  given  in  evidence  under  that  plea.  Expediency  re(|uires  that 
the  statute  of  limitations  should  be  pleaded  in  debt  equally  as  in 
assumpsit.  The  exceptions  in  the  statute  are  alike  applicable  to 
both  actions,  and  the  plaintiff  is  equally  liable  to  be  surprised.  In 
either  case  the  statute  does  not  extinguish  the  debt,  but  only  takes 
away  the  remedy ;  and  as  in  either  case  the  defendant  may  insist 
upon  the  statute  or  waive  it,  if  he  intend  to  insist  upon  the  statute 
he  should  plead  it,  to  prevent  surprise.  1  Wms.  Saund.  283,  n.  (2). 
Against  the  general  application  of  this  rule,  the  case  of  Duppa  v. 
Mayo,  1  Saund.  282,  does  not  militate.  That  case  decided,  that  a 
plea  of  7iil  debet  infra  sex  annos  should  conclude  to  the  country ; 
but  that  plea  amounted  to  the  general  issue  merely,  the  words 
infra  sex  annos  being  surplusage ;  because  if  the  defendant  owed 
nothing  at  the  commencement  of  the  suit,  it  was  immaterial 
whether  he  had  owed  anything  at  any  other  period  within  six 
years,  and,  if  he  was  then  indebted,  it  mattered  not  how  long  tlie 
debt  had  been  due.  By  equitable  construction,  the  statute  of  limi- 
tations has  been  applied  to  a  set-off,  and  a  debt  barred  by  the  stat- 
ute cannot  be  set  off  ;  but  as  the  defendant  waives  the  statute  by 
not  pleading  it,  so  does  the  plaintiff  if  the  statute  be  not  replied. 
The  rule  of  expediency  is  equally  applicable  to  a  replication  as  to  a 
plea,  and  the  mere  change  of  character  between  the  parties  can 
afford  no  solid  distinction.     A  defendant  is  not  bound  to  avail  him- 


416  CASES    ox    COMMON-LAW   PLEADING. 

self  of  liis  set-off,  but  may  bring  a  cross  action,  in  which  case  the 
statute  must  be  pleaded :  why,  then,  if,  to  avoid  circuity  of  action, 
the  set-off  be  pleaded,  should  the  defendant  be  placed  in  a  worse 
situation  than  if  he  had  sued  for  the  amount  ?  In  a  book  of  author- 
ity, B.  N.  P.  180,  it  is  said:  "A  debt  barred  by  the  statute  of  limita- 
tions cannot  be  set  off.  If  it  be  pleaded  in  bar  to  the  action,  the 
plaintiff  may  reply  the  statute  of  limitations.  If  it  be  given  in 
evidence  on  a  notice  of  set-off,  it  may  be  objected  to  at  the  trial." 
So,  in  Remington  v.  Stevens,  2  Str.  1271,  it  was  held,  that  the 
statute  of  limitations  may  be  replied  to  a  plea  of  set-off.  In  legal 
construction  the  word  "  may  "  is  here  to.  be  understood  as  "  must ; " 
for,  if  the  statute  be  available  at  all  against  a  set-off,  it  can  only  be 
subject  to  the  same  rules  as  if  the  set-off  constituted  the  subject  of 
a  distinct  action.  This  view  is  confirmed  by  the  statute  9  Geo.  IV. 
c.  14,  s.  4,  which  places  original  demands  and  contracts  alleged  by 
way  of  set-off  upon  the  same  footing  with  respect  to  the  statute  of 
limitations. 

Erie,  contra.  The  defendant  is  liable  to  be  surprised  by  many 
defences  that  may  be  given  in  evidence  under  the  general  issue  ; 
and,  even  in  criminal  pleading,  no  notice  is  given  to  the  defendant, 
by  allegations  which  are  held  to  be  immaterial.  Expediency  is  not, 
therefore,  a  safe  ground  of  decision  in  this  case.  Eeferring  to  the 
words  of  the  statute,  and  the  earlier  authorities,  it  would  seem  that 
in  no  case  need  the  statute  be  pleaded,  the  ■  debt  being  destroyed 
when  more  than  six  years  old.  Brown  v.  Hancock,  Cro.  Car.  115. 
However,  in  the  action  of  assumpsit  it  has  been  decided  that  the 
statute  must  be  pleaded ;  but  in  debt  there  is  no  decision  to  that 
effect.  On  the  contrary,  although  the  modern  practice  may  have 
been  otherwise,  the  case  of  Draper  v.  Glassop,  1  Lord  Eaym.  153, 
and  the  anonymous  case  in  1  Salkeld,  278,  expressly  show  that  the 
statute  of  limitations  may  be  given  in  evidence  under  the  plea  of 
7iil  debet.  Upon  this  subject  the  opinion  of  Lord  Holt  is  entitled 
to  great  consideration,  sanctioned  as  it  is  by  the  authority  of  Lord 
Chief  Baron  Comyns,  Com.  Dig.  "Plead."  (2  W.  17),  and  the  case  of 
Duppa  V.  Mayo,  1  Saund.  282.  But  there  is  no  case  to  show  that 
the  statute  must  be  replied  to  a  plea  of  set-off ;  for  the  authorities 
referred  to  merely  show  that  it  may  be  replied ;  which  will  be  true, 
although  it  may  also  be  given  in  evidence  under  a  general  replica- 
tion of  nil  debet.  Were  it  otherwise,  the  plaintiff  would  be  in  a 
w^orse  situation  than  if  he  were  defendant  to  an  action  for  the 
recovery  of  the  subject  of  the  set-off;  for  a  defendant  may  plead 
several  pleas,  whereas  one  matter  only  can  be  replied. 

Cur.  adv.  vult. 


PLEAS    IN"    BAR.  417 

Vaughan,  B.,  now  delivered  the  judgment  of  the  court  as  fol- 
lows :  — 

This  was  an  action  of  debt  tried  before  the  Lord  Chief  Justice  of 
the  Court  of  Common  Pleas  at  the  last  Summer  Assizes  for  the 
county  of  Somerset. 

The  first  count  of  the  declaration  was  upon  a  bond,  dated  4th 
March,  1800,  and  conditioned  for  the  payment  of  £150,  with  inter- 
est ;  the  second  count  was  upon  a  promissory  note,  and  there  were 
also  added  the  common  money  counts. 

The  defendant  pleaded  to  the  first  count  on  the  bond,  non  est 
factum,  solvit  post  diem,  solvit  post  cliem  by  the  executors  of  the  co- 
obligor,  and  a  set-off;  and,  to  the  other  counts,  nil  debet,  the  statute 
of  limitations,  and  a  set-off.  Issues  were  joined  on  these  several 
pleas ;  and  to  the  pleas  of  set-off,  the  common  replication  was  filed, 
that  the  plaintiff  was  not  indebted  modo  et  forma  as  in  those  pleas 
was  alleged,  concluding  to  the  country. 

Upon  the  trial  of  the  cause,  it  was  admitted  by  the  defendant, 
that  £50  remained  due  upon  the  bond,  together  with  interest 
thereon,  from  the  year  1800,  amounting  to  £77  10s.  The  defend- 
ant proved  that  the  plaintiff  was  indebted  to  him  in  the  sum  of 
£20,  for  rent,  which  became  due  at  Lady-day,  1822,  for  certain 
premises  occupied  by  the  plaintiff  under  the  defendant,  and  which 
he  insisted  ought  to  be  deducted  from  the  £77  10s.  admitted  to  be 
due  from  him  to  the  plaintiff  upon  the  bond.  The  plaintiff,  on  the 
other  hand,  contended  that,  more  than  six  years  having  elapsed 
since  that  debt  accrued,  the  defendant's  remedy  for  the  recovery  of 
it  was  barred  by  the  statute  of  limitations,  and  that  he  was  entitled 
to  the  benefit  of  that  statute,  under  the  common  form  of  replication 
to  the  plea  of  set-off,  without  replying  the  statute  of  limitations 
specially. 

The  Lord  Chief  Justice  of  the  Common  Pleas  seems  to  have  been 
of  opinion,  that,  as  the  plaintiff  had  not  replied  the  statute  of  limita- 
tions to  the  plea  of  set-off,  the  defendant  was  entitled  to  set  off  this 
sum  of  £20,  although  it  was  a  debt  which  had  accrued  more  than 
six  years  before  the  plea  pleaded,  and  therefore  directed  the  jury  to 
find  their  verdict  for  the  plaintiff  for  £57  10s.  only,  reserving  to  the 
plaintiff  the  liberty  to  move  to  increase  the  verdict  to  the  sum  of 
£77  10^.,  if  this  court  should  be  of  opinion  that  he  was  entitled  to 
the  larger  sum. 

The  question,  therefore,  reserved  for  the  opinion  of  the  court  upon 
this  state  of  facts  is,  whether,  to  a  plea  of  set-off,  pleaded  in  an  action 
of  debt,  the  plaintiff  is  bound  to  reply  the  statute  of  limitations,  or 
whether  he  may  avail  himself  of  the  benefit  of  that  statute,  upon  the 

27 


418  CASES    ON    COMMON-LAW    PLEADING. 

common  replication  that  he  was  not  indebted  modo  et  forma,  con- 
cluding to  the  country. 

The  case  was  ably  argued  by  Mr.  Erie  for  the  plaintiff,  and  Mr. 
Erskine  for  the  defendant,  and  many  authorities  were  cited,  which 
we  have  thought  it  our  duty  to  examine ;  and  which,  after  due  con- 
sideration, have  induced  us  to  conclude,  that  the  view  taken  of  the 
question  by  the  Lord  Chief  Justice  of  the  Common  Pleas,  upon  the 
trial  of  the  cause,  was  the  correct  oue:  viz.  that  the  plaintiff,  having 
omitted  to  reply  the  statute  of  limitations  to  the  plea  of  set-off,  was 
precluded  from  availing  himself  of  that  statute  as  a  bar  to  the  de- 
fendant's cross-demand. 

There  are  few  acts  of  parliament  which  have  generated  more 
controversy,  and  been  productive  of  more  litigation,  than  the  statute 
21  Jac.  1,  c.  16,  which  was  passed  (as  the  preamble  of  it  declares) 
for  the  purpose  of  quieting  men's  estates,  and  for  the  avoiding  of 
suits. 

The  multiplicity  of  cases  and  the  many  contradictory  decisions 
to  be  found  in  our  Common  Law  Reports  upon  the  construction  of 
this  statute  afford  the  strongest  evidence  of  the  inconvenience  and 
mischief  occasioned  by  a  departure  from  the  plain  and  literal  sense 
of  the  act,  and  from  too  much  refinement  in  construing  its  provis- 
ions. The  third  section  enacts,  that  the  different  personal  actions 
therein  enumerated,  shall  be  brought  within  the  respective  periods 
of  time  limited  by  that  section,  and  not  after.  And  in  Brown  v. 
Hancock,  one  of  the  earliest  cases  which  occurred  after  the  passing  of 
the  act,  in  the  fourth  year  of  the  reign  of  Charles  the  1st,  and  which 
is  reported  in  Cro.  Car.  115,  the  Court  of  Common  Pleas  held,  that, 
if  it  appeared  by  the  plaintiff's  own  showing  that  the  action  was 
not  brought  within  the  limited  time,  or  if  the  contract,  whether  in 
assumpsit  or  debt,  were  alleged  to  be  within  the  time,  and,  upon 
nil  debet  or  non  assumpsit  pleaded,  it  appeared  in  evidence  that  the 
assumpsit  or  contract  was  beyond  the  time,  the  action  lies  not,  and 
the  defendant  shall  take  advantage  thereof,  if  it  be  specially  found 
by  the  jury ;  for  the  statute  is  in  the  negative,  that  he  shall  not 
maintain  such  action  after  the  period  limited  by  the  statute  had 
expired.  But  this  decision  was  not  long  acted  upon,  for,  in  the  fol- 
lowing year,  the  Judges  of  the  Court  of  King's  Bench  determined, 
upon  error  from  the  Common  Pleas,  in  Thursley  v.  Warren,  Cro. 
Car.  160,  that  the  statute  of  limitations  must  be  pleaded,  although 
the  declaration  alleged  both  the  promise  and  the  breach  of  it  to 
have  been  made  more  than  six  years  before  the  commencement  of 
the  suit.  The  same  point  was  determined  in  Still  v.  Finch,  Cro. 
Car.  281 ;  Hopkms  v.  Bitthead,  Cro.  Car.  404;  Lee  v.  Ptogers,  1  Lev. 


PLEAS    IN   BAR.  419 

110,  and  in  Gould  v.  Johnson,  Lord  Eavra.  83 S,  wliich  latter  case 
came  also  by  writ  of  error  from  the  Court  of  Common  Pleas. 
One  of  the  errors  assigned  in  that  case  was,  that  it  appeared  upon 
the  declaration  that  the  cause  of  action  accrued  more  than  six  years 
before,  and  therefore  it  was  not  necessary  to  plead  the  statute.  But 
the  court  determined  that  the  statute  must  be  pleaded,  that  the 
plaintiff  might  have  the  opportunity  of  replying  to  such  matter,  for 
it  may  be  that  the  original  was  sued  within  six  years  after  the  cause 
of  action  accrued. 

A  distinction  seems  to  have  been  taken  as  to  the  form  of  plead- 
ing in  assumpsit  and  debt,  the  authorities  agreeing  that,  in  assump- 
sit, the  defendant  must  plead  the  statute,  and  conclude  his  plea 
with  a  veritication,  to  give  the  plaintiff  an  opportunity  of  answering 
it,  whereas  in  debt  the  defendant  may  give  the  statute  in  evidence 
under  nil  debet  generally.  The  reason  assigned  by  Lord  Holt  for 
this  distinction  is,  that  in  debt  upon  nil  debet  pleaded  the  statute  of 
limitations  may  be  given  in  evidence,  because  it  has  made  it  no 
debt  at  the  time  of  the  plea  pleaded,  the  words  of  which  are  in  the 
present  tense :  but,  in  assumpsit,  the  statute  of  limitations  cannot 
be  given  in  evidence,  for  it  speaks  of  a  time  past,  and  relates  to  the 
time  of  making  the  promise.  Draper  v.  Glassop.  1  Lord  Kaym.  153, 
Anon.  cor.  Holt,  C.  J.,  at  Hertford,  1690.     1  Saik.  278. 

This  rule,  originating,  as  it  should  seem,  in  this  decision  of  Lord 
Holt,  has  been  incorporated  into  the  admirable  Digest  of  Lord 
Chief  Baron  Comyns,  "Pleader"  (2  W.  17),  where,  in  enumerating 
the  cases  in  which  the  defendant  may  plead  the  general  issue  nil 
debet,  to  debt  upon  contract,  not  upon  bond,  he  says,  "  so,  though 
the  debt  is  barred  by  the  statute  of  limitations,  for  he  could  not 
plead  nil  debet  infra  sex  annos,  but  nil  debet  generally,"  and  cites 
the  case  of  Draper  v.  Glassop.  It  appears  to  us  that  this  distinc- 
tion savors  more  of  ingenious  refinement  than  of  plain  and  practi- 
cal good  sense,  and  we  conceive  that  the  same  rule  would  now  be 
extended  as  well  to  actions  of  debt  as  of  assumpsit,  the  same  rea- 
sons for  pleading  the  statute  applying  equally  to  both.  If  the 
statute  is  not  pleaded,  the  plaintiff  is  liable  to  be  surprised,  and 
therefore  equally  unprepared  to  answer  in  the  one  action  as  in  the 
other.  In  neither  case  does  the  statute  extinguish  the  debt,  but 
bars  only  the  remedy,  and  it  is  optional  whether  the  defendant  will 
insist  upon  the  statute  or  waive  it.  If  he  intends  to  insist  upon  it, 
he  should  plead  it,  to  prevent  surprise,  and  if  he  does  not,  it  should 
be  presumed  he  intends  to  waive  it.  This  is  the  view  taken  by  the 
late  Mr.  Serjt.  Williams,  than  whom  a  sounder  lawyer,  or  more 
accurate  special  pleader,  has  rarely  done  honor  to  his  profession; 


420  CASES   ON   COMMON-LAW    PLEADING. 

and  he  states  it  to  be  very  usual,  and  the  modern  practice,  to  plead 
to  debt  on  simple  contract,  that  the  cause  of  action  did  not  accrue 
within  six  years,  that  the  plaintiff  may  reply,  either  that  he  was 
within  any  of  the  exceptions  in  the  statute  or  that  he  has  sued  out 
a  writ  within  time,  as  is  the  common  case  in  assumpsit. 

Assuming,  therefore,  that  there  is  no  solid  foundation  for  any 
distinction  in  the  mode  of  pleading  the  statute  of  limitations, 
whether  in  debt  or  in  assumpsit,  the  simple  point  to  be  considered 
is,  whether,  where  a  set-off  is  pleaded,  the  plaintiff,  in  order  to  avail 
himself  of  the  statute,  must  reply  it  specially.  It  may  be  said, 
that  this  would  impose  a  great  hardship  on  the  plaintiff,  for  as  he 
cannot  reply  more  than  one  matter,  he  would  be  placed  in  a  worse 
situation  than  the  defendant,  who  can  plead  the  statute,  and  also 
under  the  statute  of  Ann.,  insist  upon  any  other  defence.  Indeed, 
it  has  been  suggested  by  Mr.  Starkie,  in  his  valuable  practical 
treatise  on  the  law  of  evidence,  that  it  would  be  unreasonable  that, 
in  one  and  the  same  action,  the  defendant  should  be  indulged  in 
making  several  distinct  answers  to  the  plaintiff's  claim,  and  yet  that 
the  plaintiff,  in  his  answer  to  a  counter  claim,  on  the  part  of  the 
defendant,  should  be  confined  to  one  only.     3  Starkie,  1318. 

We  have  not  been  able  to  find  any  authority  directly  upon  this 
point.  In  Buller's  Nisi  Prius,  180,  it  is  said,  that  if  a  debt,  barred 
by  the  statute  of  limitations,  be  pleaded,  the  plaintiff  may  reply 
the  statute.  If  it  be  given  in  evidence  on  notice,  it  may  be  ob- 
jected to  at  the  trial.  This  dictum  of  Mr.  Justice  BuUer  seems  to 
have  been  founded  upon  the  authority  of  a  very  short  and  loose 
note  of  the  case  of  Eemington  v.  Stevens,  2  Stra.  1271,  where  it  is 
reported  to  have  been  ruled,  that  the  statute  of  limitations  may  be 
replied  to  a  plea  of  set-off;  but,  in  legal  construction,  we  interpret 
the  expression  "  may  "  imperatively,  to  mean  "  must." 

A  plea  of  set-off  has  ever  been  considered  as  in  the  nature  of  a 
cross-declaration  ;  and,  as  it  is  clear,  that  if  the  defendant  had 
sought  to  enforce  his  demand  by  assuming  the  character  of  plaintiff, 
the  adverse  party  could  have  protected  himself  solely  by  pleading 
the  statute ;  so,  we  conceive,  that  the  mere  difference  of  the  posi- 
tion of  the  names  and  characters  of  the  parties  upon  the  record, 
will  not  dispense  with  the  necessity  of  introducing,  by  way  of 
replication,  the  same  substantive  matter  of  defence  to  the  counter 
demand.  Nor  can  the  hardship  of  this  course  of  proceeding  be 
with  justice  complained  of,  when  it  is  remembered,  that  the  plaintiff 
is  at  liberty  to  reply  nil  debet  as  to  part  of  the  defendant's  cross- 
demand,  and  the  statute  of  limitations  to  the  residue.  Upon  the 
whole,  it  seems  to  us  more  consonant  to  the  acknowledged  rules  of 


PLEAS    IN   BAR.  421 

pleading  to  determine  that  the  statute  of  limitations  ought,  in  this 
instance,  to  have  been  replied,  and  that,  the  plaintiti"  having 
omitted  to  do  so,  the  verdict  must  stand,  and  the  rule  be  dis- 
charged.i  Eule  discharged.^ 

ACTIONS  OX  SPECIALTIES. 

"  In  covenant  there  is,  properly  speaking,  no  general  issue ;  for 
though  the  defendant  may  plead  non  est  factum,  as  in  debt  on 
specialty,  yet  that  only  puts  the  deed  in  issue,  and  not  the  breach 
of  covenant :  and  non  infre'jit  conventionem  is  a  bad  plea.  In  this 
action,  therefore,  the  defendant  must  specially  controvert  the  deed, 
or  show  that  he  has  performed  the  covenant,  or  is  legally  excused 
from  the  performance  of  it;  or  admitting  the  breach, that  he  is  dis- 
charged by  matter  ex  post  facto,  as  a  release,  etc."  Tidd's  Practice, 
593. 

EDWARDS   V.  BROWN,  HARRIES,   AND   STEPHENS. 

Exchequer  of  Pleas.     1831. 

Reported  1  Ckompton  and  Jervis,  307. 

A  denial  of  one's  ignorance  of  the  legal  effect  of  a  bond  is  not  a  denial  of 
the  noaking  of  the  bond. 

Debt  upon  a  bond  dated  12th  October,  1826.  The  defendant, 
Brown,  suffered  judgment  by  default.  The  bond,  as  set  out  on 
oyer,  appeared  to  be  a  bond  given  upon  a  mortgage  for  £1800  to 
the  plaintiff.  It  recited  that  Brown  was  seised  in  tail  of  the 
mortgaged  premises ;  that,  by  lease  and  release,  of  even  date,  the 
premises  had  been  conveyed  to  make  a  tenant  to  the  prcer.ipe,  that 
a  recovery  might  be  suffered  ;  and  the  condition  was,  that  if  the 
recoverv  should  be  suffered  in  manner  and  form  mentioned  in  the 
release,  and  so  and  in  such  manner  as  that  under  and  by  virtue 
of  the  recovery  and  of  the  release,  the  premises  should  be  vested 
in  the  plaintiff  in  fee,  according  to  the  true  intent  and  meaning  of 
the  release,  the  bond  should  be  void.  The  defendant.  Harries, 
then  pleaded,  first,  non  est  factum ;  secondly,  that  the  recovery  was 

1  Garrow,  B.,  who  was  absent  on  account  of  indisposition,  concurred  in  the  judg- 
ment of  the  court.     The  Lord  Chief  Baron  was  sitting  in  eqiiity. 

2  6  Bac.  Abr.,  Lirn.  Ac  40.5;  3  Dane's  Abr.,  Ev.,  464;  Viner,  Abr.,  Lim.  121; 
Com.  Dig.  PI.  2  W.  16;  Gilb.  H.  C.  P.  66;  Lee  v.  Clark,  2  East.  .333  [1802];  Draper 
V.  Glassop,  1  Ld.  Ray.  153;  Anon.  1  Salk.  278  [both  1690];  Brown  v.  Hancock, 
Hetley,  HI,  s.  c.  Cro.  Car.  11.5  [1628] ;  Petrie  v.  White,  3  T.  R.  .5  at  1.1  [1789]  rontm  : 
Woodhouse  v.  Williams,  York  Sum.  Ass.  1829  ;  Pearsall  v.  D wight,  2  Mass.  87  [1805]  ; 
1  Wms.  Saunders,  283  a,  note,  ace.  —  Ed. 


422  CASES    ON    COMMON-LAW   PLEADING. 

suffered  modo  et  forma,  etc. ;  and  that,  under  and  by  virtue  of  the 
recovery,  and  of  the  lease  and  release,  the  premises  became  vested 
in  the  plaintitf  in  fee,  according  to  the  true  intent  and  meaning  of 
the  release ;  thirdly,  that  a  recovery  was  suffered,  and  that  if 
Brown  had  been  seised  in  tail,  the  premises  would  have  vested  in 
the  plaintiff  in  fee;^  and  fourthly,  that  the  recovery  mentioned 
in  the  release  was  suffered.  Stephens  also  pleaded  non  est  factum, 
and  a  plea  similar  to  the  second  plea  of  Harries.  The  plaintiff 
replied  to  the  second  pleas  of  Harries  and  Stephens,  that  the  re- 
covery was  not  suffered  so  and  in  such  manner  as  that,  under  and 
by  virtue  thereof,  and  of  the  lease  and-  release,  the  premises  be- 
came vested  in  the  plaintiff  in  fee,  according  to  the  true  intent  and 
meaning  of  the  release ;  and  to  the  fourth  plea,  pleaded  by  Harries, 
that  the  recovery  was  not  suffered  so  and  in  such  manner  as  that, 
under  and  by  virtue  thereof,  and  of  the  lease  and  release,  the  prem- 
ises became  vested  in  the  plaintiff  in  fee  according  to  the  true 
intent  and  meaning  of  the  release.  Issues  were  joined  on  the  pleas 
of  non  est  factum ;  on  the  replications  to  the  second  and  fourth 
pleas  of  Harries,  on  the  replication  to  the  second  plea  of  Stephens, 
and  on  the  replication  to  the  third  plea  of  Harries,  upon  which  no 
question  arose.^ 

At  the  trial,  before  Park,  J.,  at  the  last  Summer  Assizes  for  the 
county  of  Hereford,  it  appeared,  that  Brown  was  seised  of  the 
premises  in  question  for  life  only .'^  and  not  in  tail:  so  that,  although 
the  recovery  was  duly  suflered,  it  could  not  vest  in  the  plaintiff  a 
fee.  Kussell,  Serjt.,  tendered  evidence  to  prove  that  Stephens  had 
been  induced  by  fraud  to  execute  the  bond,  but  the  learned  judge 
was  of  opinion,  that  such  evidence  was  not  admissible  under  the 
plea  of  non  est  factum.     The  jury  found  a  verdict  for  the  plaintiff. 

In  Michaelmas  Term  last,  Eussell,  Serjt.,  for  Stephens,  obtained  a 
rule  to  show  cause  why  a  new  trial  should  not  be  had,  upon  the 
ground  of  the  rejection  of  the  evidence  of  fraud;  and  E.V.  Williiims 
obtained  a  rule  7iisi  to  enter  a  verdict  for  the  defendant  Harries, 
upon  the  second  and  fourth  pleas,  upon  the  ground  that  the  recov- 
ery was  suffered  according  to  the  true  intent  and  meaning  of  the 
condition  and  release. 

1  See  this  plea,  3  Y.  &  J.  424. 

2  Tlie  validity  of  the  third  plea  was  before  discussed  and  determined.  See  3  Y. 
&  J.  424. 

^  Williams  obtained  a  rule  nisi  for  a  new  trial,  upon  the  ground  that  the  evidence 
did  not  show  that  Brown  was  only  seised  for  life  of  the  premises ;  but  as  this  question 
turned  upon  tlie  effect  of  the  evidence  merely,  the  arguments  and  the  judgment  upon 
this  point  are  omitted. 


PLEAS   IN   BAR. 


423 


John  Evans  and  Godson  showed  cause.  Fraud  is  not  admissi- 
ble under  the  general  issue.  It  is  laid  down  in  Chitty  on  Plead- 
in;?,  Vol.  I.  pp.  424,  425,  and  in  Tidd's  Practice,  Vol.  I.  p.  650,  that 
fraud  is  admissible  under  the  plea  of  7ion  ed  factum,  upon  the 
authority  of  the  case  of  Lambert  v.  Atkins,  2  Camp.  272 ;  but  that, 
which  was  a  case  of  coverture,  does  not  bear  out  that  position.  It 
may  be  admitted  that  fraud  avoids  all  contracts ;  but  it  does  not, 
therefore,  follow,  that  fraud  may  be  given  in  evidence  under  this 
plea.  In  Harmer  v.  Wright,  2  Stark.  35,  it  was  decided,  that  the 
defendant  could  not,  on  the  plea  of  non  est  fachtm,  prove  that  the 
bond  was  void  at  common  law,  as  being  an  illegal  contract  to  forego 
prosecutions  for  felonies.  The  correct  rule  appears  to  be,  that 
nothing  that  affects  the  consideration  or  inducement  to  execute  the 
bond  can  be  given  in  evidence  under  the  plea  of  non  est  factum} 
Whelpdale's  Case,  5  Rep.  119  a,  is  no  authority  for  the  defendant ; 
and  the  second  and  third  resolutions  show  that  where  a  deed  is 
voidable,  as  by  duress,  or  is  void  by  reason  of  an  act  of  Parliament, 
the  matter  must  be  pleaded  specially.  In  the  note  to  this  case  by 
Fraser,  the  rule  is  stated  to  be,  that  whatever  tends  to  show  an  in- 
valid or  defective  execution  of  a  deed  at  the  time  of  plea  pleaded, 
may  be  given  in  evidence  under  the  plea  of  non  est  factum ;  but 
whatever  impeaches  the  deed  by  reason  of  the  matter  or  consid- 
eration thereof,  whether  such  matter  or  consideration  renders  the 
deed  void  by  the  policy  of  the  common  law,  or  by  the  express  pro- 
visions of  the  statute  law,  must  be  specially  pleaded,  and  such  plea 
ought  to  conclude  with  "  and  so  the  said  deed  is  void,"  and  not  with 
"  d  sic  non  ed  factam:'  Here  the  evidence  was  not  tendered  to 
affect  the  execution  of  the  bond,  but  to  impeach  the  consideration 
or  inducement  to  execute  it;  and  therefore  this  defence  should 
have  been  pleaded  specially,  and  could  not  be  admitted  under  the 
plea  of  non  est  factum. 

The  point,  as  to  the  effect  of  the  recovery,  was  decided  by  the 
court  upon  the  former  argument,  and  the  authorities  are  collected 
in  the  report  of  that  argument.     3  Y.  &  J.  423. 

Eussell,  Serjt.,  for  the  defendant  Stephens.  This  defence  of 
Stephens  was  receivable  under  the  plea  of  non  est  factum.  He  was 
induced  to  execute  by  the  misrepresentation  of  the  plaintiff.  The 
contract  was  concocted  in  fraud,  and,  being  fraudulent,  it  never 
could  have  been  his  deed.  The  rule  is,  that  where  originally,  or  at 
the  time  of  plea  pleaded,  it  is  not  the  deed  of  the  party,  it  may  be 
given  in  evidence  under  7ion  est  factum  ;  and  in  no  case,  except  in 

1  See  the  cases  collected  by  Roscoe,  on  Evidence.  244. 


424  CASES   ON   COMxMON-LAW    PLEADING. 

that  of  forgery,  can  it  be  less  the  deed  of  the  party  than  when  it  is 
obtained  by  fraud,  for  fraud  vitiates  all  transactions.  Fermer's 
Case,  3  Eep.  77  a.  In  the  modern  publications  on  pleading,  though 
a  form  is  given  of  a  plea  of  fraud,  concluding  "  and  therefore  the 
bond  is  void,"  yet  it  is  said,  that  fraud  may  be  given  in  evidence 
under  the  general  issue. 

[liayley,  B.  Can  you  distinguish  this  from  a  case  of  duress  ?] 
In  the  second  resolution  in  Whelpdale's  Case,  duress  is  classed 
amongst  those  cases  in  which  the  deed  is  voidable  merely.  The 
note  by  Mr.  Fraser  to  that  case  is  in  favour  of  the  defendant ;  he 
states,  that  what  tends  to  show  an  invalid  or  defective  execution, 
mav  be  given  in  evidence  under  non  est  factum.  The  present  case 
falls  within  that  rule.  He  then  adds,  that  what  impeaches  the 
deed  by  the  matter  or  consideration  thereof  must  be  specially 
pleaded.  Here  it  is  not  attempted  to  impeach  the  matter  or 
consideration  of  the  bond,  but  the  evidence  was  offered  to  show 
that  the  party  was  induced  to  execute  by  fraud.  If  unlettered 
and  misread  is  evidence  under  non  est  factum,  as  to  which  there 
can  be  no  doubt  (see  Com.  Dig.  Fait  (B.  2),  Eeading),  mis- 
representation of  the  effect  of  the  instrument  must  likewise  be 
admissible  under  that  plea.  In  Thompson  v.  Eock,  4  M.  &  S. 
338,  it  was  held,  that,  upon  a  plea  of  non  est  factum  to  a  sheriff's 
bond,  the  defendant  might  show,  at  the  trial,  that  the  bond  was 
dated  and  executed  on  a  day  subsequent  to  the  return  of  the 
writ.^ 

E.  V.  Williams,  for  Harries.  Looking  at  the  bond  and  the 
release,  the  intention  of  the  parties  was  merely  that  a  recovery 
should  be  suffered.  The  bond  was  executed  upon  an  assumption  that 
the  circumstances  recited  were  true ;  and  if  the  recitals  had  been 
true,  the  recovery  would  have  vested  a  fee  in  the  plaintiff.  The  ob- 
ject of  the  recitals  is  to  prevent  a  discussion  as  to  the  existing  state 
of  things,  and  to  show  upon  what  terms  the  obligation  was  entered 
into.  In  the  argument  upon  the  former  occasion,  an  authority  was 
cited,  to  show  that  recitals  cannot  operate  as  an  estoppel,  Br.  Faits, 
p.  4 ;  18  Ves.  181,  and  so  it  is  laid  down  in  Co.  Litt.  352  ;  but  all  the 
subsequent  authorities  are  clearly  the  other  way.  The  cases  upon 
this  subject  were  brought  under  consideration  in  Kelly  v.  Wright, 
Willes,  12,  and  there  the  older  authorities  were  overruled.  The 
doctrine  now  is,  that  the  intention  of  the  parties  is  to  be  collected 
from  the  recitals  as  well  as  from  the  other  parts  of  the  deed.    This 

1  The  authority  of  this  case  is  questioned  by  Mr.  Fraser  in  his  learned  note  to 
Whel])dale's  Case,  5  Rep.  244. 


PLEAS    IN    BAR,  425 

was  established  in  Lord  Arlington  v.  Merricke,  2  Saund.  414,  and  has 
been  uniformly  acted  upon  in  a  long  series  of  decisions.^ 

Cur.  adv.  vult. 

Bayley,  B.,  now  delivered  the  judgment  of  the  court,  and,  after 
statinff  the  pleadings  as  above,  proceeded  thus :  At  the  time  of  the 
trial,  the  defendant,  Stephens,  otiered  to  prove  that  he  was  drawn 
in  by  fraud  to  execute  the  bond ;  but  the  learned  judge  being  of 
opinion  that  fraud  could  not  be  given  in  evidence  upon  non  est 
factum,  that  evidence  was  rejected ;  and  it  is  upon  the  ground  that 
such  rejection  was  improper  that  my  brother  Kussell  obtained  his 
rule  nisi  for  a  new  trial. 

I  agree  with  my  brother  Eussell,  that,  whatever  shows  that  the 
bond  never  was  the  deed  of  the  defendant  may  be  given  in  evi- 
dence upon  non  est  factum.  But  if  the  party  actually  executes  it, 
and  was  competent  at  the  time  to  execute  it,  and  was  not  deceived 
as  to  the  actual  contents  of  the  bond,  though  he  might  be  misled 
as  to  the  legal  effect,  and  though  he  might  have  been  entitled  to 
avoid  the  bond  by  stating  that  he  was  so  misled,  it  nevertheless 
became,  by  the  execution,  the  deed  of  the  defendant,  and  he  is  not 
at  liberty,  upon  the  plea  of  7ion  est  factum,  to  say  it  was  not. 

The  rule,  as  laid  down  in  Gilbert's  Evidence,  162,  is  this:  "The 
only  point  in  issue,  and  the  controversy,  on  non  est  factum,  is, 
whether  the  deed  declared  on  be  the  act  of  the  party,  so  that  when 
the  act  is  proved  to  be  done,  the  whole  matter  denied  by  the  de- 
fendant is  proved  to  the  jury;  but  if  there  be  any  other  circum- 
stances to  destroy  that  act,  and  avoid  its  binding  force,  that  must 
be  shown  to  the  court,  that  the  court  may  judge,  and  not  the  jury, 
whether  they  are  sufficient  to  avoid  that  deed."  And  we  accordingly 
meet  with  many  instances  in  which  what  would  avoid  the  deed 
and  destroy  its  binding  force,  both  at  common  law  and  by  statute, 
has  been  held  inadmissible  in  evidence  upon  7ion  est  factum,  and 
otlier  instances  in  which  it  has  been  specially  pleaded. 

In  Whelpdale's  Case,  5  Rep.  119,  the  third  resolution  is  —  "Where 
a  bond  or  other  writing  is  by  act  of  Parliament  enacted  to  be  void, 
the  party  who  is  bound  cannot  plead  non  est  factum  ;  but,  in  con- 
struction of  law,  the  deed  is  to  be  avoided  by  the  party  who  is 
bound  by  it,  by  pleading  the  special  matter,  taking  advantage  of 
the  special  matter ;  for  although  the  act  makes  the  bond  or  other 
writing  void,  yet  thereto  the  law  doth  tacitly  require  order  and 
manner,  which  the  obligor  ought  to  follow." 

1  See  the  cases  collected  2  Sauud.  last  ed.  414,  n.  (5),  n.  b,  c;  aud  sec  Tarker  v. 
Wise,  6  M.  &  S.  239. 


426  CASES    ON    COMMON-LAW   PLEADING. 

In  Colton  V.  Goodridge,  Bl.  1108,  the  defendant  was  not  allowed, 
upon  7L011  est  factum,  to  refer  to  the  condition  of  the  bond,  to  show 
that  it  was  in  restraint  of  marriage,  and  therefore  void  at  common 
law. 

So,  in  Harmer  v.  Eowse,  6  M.  &  S.  146,  the  defendant  was  not 
allowed  to  prove,  on  non  est  factum  to  a  bond,  that  it  was  given  to 
stitle  a  prosecution  for  felony,  and  therefore  void  at  common  law. 

In  Thompson  v.  Harvey,  1  Show.  2,  where  the  objection  to  a 
bond  was,  that  it  was  in  restraint  of  trade,  which  is  a  common-law 
objection,  it  was  pleaded  specially ;  and  in  Collins  v.  Blantern,  2 
Wils.  341,  where  the  defence  to  an  action  on  a  bond  was,  that  it 
was  given  to  suppress  a  prosecution  for  perjury,  it  was  pleaded 
specially  ;  and  in  this,  and  the  case  of  Thompson  v.  Harvey,  the 
conclusion  of  the  plea  was  not  et  sic  non  est  factum,  but,  and  so 
the  bond  was  void  in  law. 

But  the  authorities  which  come  closest  to  this  case,  and  press 
most  strongly  on  my  mind,  are  the  cases  of  duress  and  threats. 
Every  argument  which  can  apply  to  a  case  where  fraud  is  the  de- 
fence, apply  equally  where  threats  or  duress  are  the  defence.  The 
party  is  equally  deprived  of  his  free  agency  and  uncontrolled  judg- 
ment in  either  case.  And  yet,  where  duress  or  threats  are  the  de- 
fence, there  is  authority  upon  authority  that  they  cannot  be  given 
in  evidence  upon  non  est  factum,  but  must  be  pleaded  specially. 
The  rule  I  have  mentioned  from  Gilbert's  Evidence,  162,  is  given 
as  the  reason  why  a  man  cannot  give  duress  in  evidence  under  non 
est  factum. 

In  1  Hen.  VII.  15  b,  Keble  lays  it  down,  if  a  man  confess  an  obli- 
gation to  be  his  deed,  he  shall  not  conclude  non  est  factum,  q.s  if  he 
pleaded  infancy ;  the  same  law  is  where  he  pleads  that  he  made 
the  obligation  of  duress  by  imprisonment. 

So,  14  Hen.  VIII.  28  a,  if  a  deed  be  made  by  duress  of  imprison- 
ment, the  defendant  ought  to  conclude  to  the  action,  for  it  would 
be  a  false  conclusion  to  say,  et  sic  non  est  factum,  for  it  was  his 
deed. 

Again,  Plowden,  66,  if  an  infant  or  a  man  by  duress  make  an 
obligation,  they  shall  demand  judgment  si  actio,  because  the  deliv- 
ery of  the  deed  was  not  void. 

So,  Doctrina  Placitandi,  259,  if  a  feme  covert  make  an  obligation, 
she  may  plead  non  est  factum  ;  but  otherwise  it  is  in  case  of  an 
infant  or  of  duress,  for  then  it  is  only  voidable ;  and,  therefore,  the 
parties  cannot  plead  non  est  factum,  but  they  shall  say  judgment 
.Si  actio. 

The  second  resolution  in  Whelpdale's  Case  is  to  the  same  effect; 


PLEAS   IN    BAR.  427 

and  upon  these  authorities  our  opinion  is,  that  the  plea  of  non  est 
factum  in  this  case  did  not  entitle  the  defendant  to  give  the  evi- 
dence he  offered ;  and,  consequently,  that  such  evidence  was  rightly 
rejected. 

This  brings  us  to  Mr.  Williams's  objection,  which  is,  that,  by  the 
recovery  which  was  suffered,  the  fee  did  vest  in  the  plaintiff"  accord- 
ing to  the  true  intent  and  meaning  of  the  release.  This  objection 
rests  wholly  upon  the  expression,  according  to  the  true  intent  and 
meaning  of  the  release;  and  it  is  founded  upon  this,  that,  according 
to  the  true  intent  and  meaning  of  the  release,  and  the  right  con- 
struction to  be  put  upon  it,  it  was  sufficient  if  a  recovery  was  suf- 
fered ;  but  that  it  was  not  essential  it  should  give  the  plaintiff  a  fee. 

The  first  answer  to  this  objection  is,  that  it  makes  the  construc- 
tion of  the  release  parcel  of  the  issue  to  be  tried  by  the  jury,  put- 
ting to  them  to  decide,  not  a  question  of  fact,  but  a  matter  of  law ; 
and  the  next,  that  it  gives  these  words  in  the  issue  a  meaning  they 
could  not  have  been  intended  to  bear.  If,  according  to  the  true 
construction  of  the  issue,  they  are  inserted  to  qualify  the  issue,  and 
to  make  it  mean  not  that  the  recovery  vested  a  fee  in  the  plaintiff 
simp2iciter,  but  that  it  vested  a  fee  in  him  as  far  as  a  recovery  by 
Brown  could  vest  one,  Mr.  Williams's  objection  would  be  valid;  but 
if  these  words  meant  no  more  than  to  signify  that  it  was  the  in- 
tention of  the  release  that  the  plaintiff  should  have  a  perfect  and 
effectual  fee,  the  objection  fails,  and  the  plaintiff  is  entitled  to  have 
this  rule  discharged.  And  I  have  no  doubt  but  that  the  latter  is 
the  meaning. 

The  defendants  all  represent,  by  the  recital  in  the  condition  of 
the  bond,  that  Brown  is  seised  in  tail.  The  plaintiff  takes  the 
estate,  not  for  enjoyment,  but  as  a  security  for  money,  and  not  for 
money  of  his  own,  but  for  trust  money.  When,  therefore,  he  takes 
a  covenant  for  a  recovery  (which,  if  the  recital  were  true,  would 
give  him  a  fee),  he  does  wisely  to  take  a  covenant,  not  merely  that 
a  recovery  shall  be  suffered,  but  that  it  shall  be  suffered  so  as  to 
have  the  effect  of  giving  him  the  fee,  it  being  clearly  and  unequivo- 
cally the  intention  of  that  security  that  he  should  have  the  fee. 
What  is  the  species  of  contract  for  title  that  a  mortgagee  is  natu- 
rally to  be  expected  to  take  ?  Not  one  that  is  qualified  according 
to  the  title  of  the  mortgagor,  but  one  that  is  absolute ;  and,  as  the 
condition  of  this  bond  shows  that  the  money  wliich  the  bond  se- 
cures was  lent  to  Brown  by  way  of  mortgage,  this  was  the  species 
of  contract  the  defendants  were  naturally  to  expect. 

We  are  therefore  of  opinion  that  both  the  rules  in  this  case  ought 
to  be  discharged.  Eules  discharged. 


428  CASES    ON   COMMON-LAW   PLEADING. 

WHELPDALE'S   CASE. 

In  the  King's  Benxh.     1604. 

Eeported  5  Coke,  241. 

For  the  words  non  est  factum  indicate  a  denial  that  the  deed  is  the  defend- 
ant's. 

In  debt  by  Whelpdale  against  Whelpdale,  which  began  Hil.  45 
Eliz.  Eot.  1303.  The  plaintiff  declared  on  a  bill  obligatory  made 
by  the  defendant  to  the  plaintiff ;  the  defendant  pleaded  non  est 
factum,  and  the  jury  found  that  the  bill  was  a  joint  bill  made  by 
the  defendant  and  another  to  the  plaintiff;  and  if  on  the  matter  the 
bill  mentioned  in  the  declaration  be  the  deed  of  the  defendant,  the 
jurors  prayed  the  advice  of  the  court.  And  it  was  adjudged  that 
the  plaintiff  should  recover.  And  in  this  case  four  points  were 
resolved : 

1.  When  two  men  are  jointly  bound  in  a  bond,  although  neither 
of  them  is  bound  by  himself,  yet  neither  of  them  can  say,  that  the 
bond  is  not  his  deed,  for  he  has  sealed  and  delivered  it,  and  each  of 
them  is  bound  in  the^whole.  And  therefore  if  they  are  both  sued 
and  one  appears,  and  the  other  makes  default,  and  by  process  of  law 
is  outlawed,  he  who  appears  shall  be  charged  with  the  whole,  as  ap- 
pears in  40  Edw.  III.  36.,  41  Edw.  III.  3.  But  in  the  case  at  bar, 
he  might  have  pleaded  in  abatement  of  the  writ,  but  cannot  plead 
non  est  factum. 

2.  It  was  resolved,  that  in  all  cases  when  the  deed  is  voidable, 
and  so  remains  at  the  time  of  the  pleading  (as  if  an  infant  seals  and 
delivers  a  deed,  or  a  man  of  full  age  by  duress),  in  these  and  the 
like  cases,  the  obligor  cannot  plead  non  est  factum,  for  it  is  his  deed 
at  the  time  of  the  action  brought,  and  ought  to  be  avoided  by  spe- 
cial pleading,  with  conclusion  of  judgment,  si  actio,  1  Hen.  VII. 
15.  a,  b. 

3.  When  a  bond  or  other  writing  is  by  an  act  of  Parliament 
enacted  to  be  void,  the  party  to  be  bound  cannot  plead  non  est  factum, 
but  in  construction  of  law  the  deed  is  to  be  avoided  by  the  party 
who  is  bound  by  it,  by  pleading  the  special  matter,  taking  advantage 
of  the  act  of  Parliament ;  for  although  the  act  makes  the  bond  or 
other  writing  void,  yet  thereto  the  law  doth  tacitly  require  order 
and  manner,  which  the  obligor  ought  to  follow :  as  if  a  bond  be 
made  to  a  sheriff  against  the  statute  of  23  Hen.  YI.  cap.  10,  or  to  any 
one  against  thestat.  13  Eliz.  cap.  8,  of  usury,  in  these  and  other  like 
cases  the  obligor  ought  to  plead  the  special  matter,  with  conclusion 


PLEAS    IN    BAR,  429 

of  judgment,  if  action ;  and  not  to  plead  noyi  est  factum ;  and  there- 
with agrees  7  Edw.  IV.  5,  6,  7  Edw.  YI.  Br.  non  est  faatiini  14, 
against  the  opinion  of  Montague,  Plow.  Comm.  in  Dive  and  Man- 
ningham's  Case. 

In  all  cases  where  the  bond  was  once  his  deed,  and  afterward 
before  the  action  brought  becomes  no  deed,  either  by  rasure,  or  ad- 
dition, or  alteration  of  the  deed,  or  breaking  off  the  seal ;  in  this 
case,  although  it  was  once  a  deed,  yet  the  defendant  may  safely 
plead  non  est  factum,  for  without  question  at  the  time  of  the  plea, 
which  is  in  the  present  tense,  it  was  not  his  deed,  36  Hen.  VIII. 
Dyer,  59.  In  an  action  of  debt  on  a  bond  against  Haywood,  the 
defendant  pleaded  now  est  factum,  and  before  the  day  of  appearance 
of  the  inquest,  rats  did  eat  the  label  by  which  the  seal  was  fixed, ^ 
by  the  negligence  of  the  clerk  in  whose  custody  it  was,  the  justices 
charged  the  jury,  that  if  they  should  find  that  it  was  the  deed  of 
the  defendant  at  the  time  of  the  plea  pleaded,  that  they  should 
give  a  special  verdict,  and  so  they  did. 

YATES   V.  BOEX. 

In  the  King's  Bench.     1738. 

Reported  2  Strange,  1104. 

In  debt  upon  articles,  the  defendant  pleaded  non  est  factum,  and 
upon  the  trial  offered  to  give  lunacy  in  evidence.  The  Chief  Justice 
at  first  thought  it  ought  not  to  be  admitted,  upon  the  rule  in  Bev- 
erly's Dase,  4  Co.  123  b,  that  a  man  shall  not  stultify  himself  ;  but 
on  the  authority  of  Smith  v.  Carr,  5  July,  1728,  where  Chief  Baron 
Pengelly  in  the  like  case  admitted  it,  and  on  considering  the  case 
of  Thompson  v.  Leecli,  in  2  Vent.  198,  the  Chief  Justice  suffered  it 
to  be  given  in  evidence.  And  the  plaintiff  upon  the  evidence  be- 
came nonsuit. 

ABNER  KELLOG  v.   DEODAT  INGERSOLL. 

Supreme  Judicial  Court,  Massachusetts.     1806. 

Reported  1  Massachusetts,  5. 

And  the  verdict  is  in  accord  with  tlie  literal  meaning  of  the  plea. 

The  declaration  stated  that  the  defendant,  by  his  deed,  bearing 
date  April  7,  1787,  in  consideration  of  £100  paid  him  by  the  plaiu- 

1  Such  an  accident  would  not  now  be  held  to  vacate  a  deed.  Pijrott's  Case  11 
Co.  26  b.  &  ' 


430  CASES    ON   COMMON-LAW   PLEADING. 

tiff,  conveyed  to  him  in  fee  simple  a  certain  tract  of  land  lying  in 
A.,  and  in  the  same  deed  covenanted  that  the  premises  were  free 
and  clear  of  all  encumbrances,  etc.  Breach  alleged,  that  the  prem- 
ises w^ere  not  free,  etc.,  of  encumbrance,  because,  at  the  time  of 
making  and  executing  the  deed,  there  was,  ever  since  has  been,  and 
yet  is,  a  public  road,  or  town-way,  six  rods  wide,  running  through 
the  same,  containing  two  acres  and  one-quarter  of  an  acre. 

To  this  declaration,  the  defendant  pleaded  noii  est  factum,  reserv- 
ing a  riglit  to  give  any  special  matter  in  evidence.  The  plaintiff, 
consenting  to  the  reservation,  joined  the  issue. 

The  court  (Strong,  Sedgwick,  Sewall,  and  Thatcher,  Justices) 
inquired  of  the  defendant's  counsel  what  special  matter  was  in- 
tended to  be  given  in  evidence  under  this  issue ;  and  on  being 
informed  that  the  existence  of  the  way  was  not  denied,  but  that  the 
reservation  in  the  plea  was  for  the  purpose  of  proving  to  the  jury 
that  the  road  was  a  privilege  —  a  benefit  —  and  not  an  encum- 
brance ;  they  directed  the  pleadings  to  be  set  aside  —  saying  it  w^ould 
be  absurd  to  try,  under  this  issue,  whether  the  road  be  an  encum- 
brance or  not  —  that  being  a  mere  question  of  law,  and  would 
come  properly  before  the  court  upon  a  demurrer  to  the  declaration. 
Suppose  the  trial  were  to  proceed  under  this  issue,  and  the  court 
should  be  of  opinion  that  the  road  is  not  an  encumbrance,  then 
they  must  direct  the  jury  to  find  for  the  defendant.  What  ?  That 
the  deed  declared  on  is  or  is  not  the  defendant's  deed. 

Ives  and  Dewey,  for  the  plaintiff.     Bidwell,  for  the  defendant. 

ANONYMOUS. 

In  the  King's  Bench.     1701. 
Reported  Holt,  .560. 

This  was  a  case  relating  to  pleading  a  deed,  and  giving  it  in 
evidence,  at  common  law  and  by  statute,  wherein  a  difference  was 
made. 

Holt,  C.  J.  If  a  statute  makes  writing  necessary  to  a  common-law 
matter,  where  it  was  not  required  by  the  common  law,  the  party 
need  not  plead  the  thing  to  be  in  writing,  but  give  it  in  evidence  ; 
though  if  a  thing  is  originally  made  by  act  of  Parliament,  which 
requires  it  to  be  in  writing,  you  must  plead  it  with  all  the  circum- 
stances required  by  the  act.  And  therefore  upon  the  statute  Hen. 
VIII.  of  wills,  a  will  must  be  pleaded  to  be  in  writing;  but  a  col- 
lateral promise,  required  to  be  put  in  writing,  by  the  statute  Car.  II. 
is  well  enough,  if  you  prove  it  to  be  so  in  evidence,  without  plead- 
ing it  to  be  in  writing. 


PLEAS   IN    BAR.  431 

[If]  A  man  pleads  over,  he  shall  never  after  take  advantage  of 
any  slip  or  mistake  in  tlie  pleading  of  the  other  side,  which  he 
could  not  do  on  a  general  demurrer. 


Section  II. 

ASSUMPSIT. 

"  In  assumpsit,  the  general  issue  is  proper  where  there  was  either 
no  contract  between  the  parties,  or  not  such  a  contract  as  the 
plaintiff  has  declared  on.  And  the  defendant  may  give  in  evidence 
under  it,  that  the  contract  was  void  in  law,  by  coverture,  gaming, 
usury,  etc.,  or  voidable  by  infancy,  duress,  etc. ;  or  if  good  in  point 
of  law,  tliat  it  was  performed  by  payment  or  otherwise,  or  if  unper- 
formed, that  there  was  some  legal  excuse  for  the  nonperformance 
of  it,  as  a  release  or  discharge  before  breach,  or  nonperformance  by 
the  plaintiff  of  a  condition  precedent,  etc.  This  sort  of  evidence 
will  show  that  the  plaintiff'  had  no  cause  of  action.  But  if  he  had, 
the  defendant  may  give  in  evidence,  under  the  general  issue,  that  it 
was  discharged,  by  an  accord  and  satisfaction,  arbitrament,  account 
stated,  release,  foreign  attachment,  or  former  recovery  for  the  same 
cause,  etc.  In  short,  the  question  in  assumpsit,  upon  the  general 
issue,  is,  whether  there  was  a  subsisting  debt,  or  cause  of  action,  at 
the  time  of  commencing  the  suit.  But  matters  of  law,  in  avoidance 
of  the  contract,  or  discharge  of  the  action,  are  usually  pleaded.  And 
it  is  necessary  to  plead  a  tender,  or  the  statute  of  limitations,  etc., 
and  to  plead  or  give  a  notice  of  set-off."     Tidd,  Practice,  593. 


PARAMOUR  V.  JOHNSON. 
/  In  the  King's  Bench.     1701.  jj 

Reportp;d  12  Modern,  376  [s.  c.  1  Ld.  Raym.  566]. 
Theory  of  non  assuinpsit. 

Assumpsit  upon  several  promises ;  plea,  that  the  defendant  paid 
such  a  sum,  in  satisfaction  of  all  promises,  till  such  a  time,  which 
the  plaintiff  received  in  satisfaction ;  absque  hoe,  that  he  made  any 
promise  since. 

The  plaintiff  demurred,  for  that  the  plea  amounted  to  the  general 
issue. 

Holt,  Chief  Justice.    It  is  no  true  rule,  that  where  defendant  may 


432  CASES   ox    COMMONM.AW    PLEADING. 

plead  the  general  issue  and  give  the  special  matter  in  evidence,  he 
shall  not  plead  specially.  Wherever  you  may  plead  matter  of  law 
which  avoids  the  cause  of  action,  you  may  plead  generally,  and 
give  that  matter  in  evidence ;  or  you  may  plead  it  specially,  and 
upon  all  general  issues  you  may  give  special  matter  in  evidence. 
If  you  give  color,  you  may  plead  it  specially ;  as  in  debt  for  rent, 
you  may  plead  nil  debet,  and  give  release  in  evidence.  Vide  Lyfield's 
Case,  10  Co.  38,  wliere  in  trespass  for  goods  the  defendant  confesses 
the  taking,  but  says  he  bought  them  in  market  overt. 

But  it  is  indulgence  to  give  accord  with  satisfaction  in  evidence 
upon  7ion  assumpsit  pleaded ;  but  that  has  crept  in,  and  now  is 
settled. 

But  here  it  appearing  that  the  sums  paid  were  less  than  those 
declared  upon,  the  plaintiff  had  judgment;  the  court  holding,  if  it 
had  been  a  collateral  satisfaction,  the  plea  had  been  good. 


BROWN   V.  CORNISH. 

In  the  King's  Bench.     1697. 

Reported  1  Lord  Raymond,  217. 

Indebitatus  assumpsit.  The  defendant  pleads  payment  according 
to  the  promises,  etc.  The  plaintiff  demurs  specially;  1,  because 
the  plea  as  he  conceived,  amounted  to  the  general  issue.  jSed  non 
allocatur.  Foj:  per  Holt,  Chief  Justice,  it  is  generally  true,  that  no 
plea  which  admits  that  there  was  once  a  cause  of  action,  amounts 
to  the  general  i^sue. 


HACKSHAW  V.  CLERKE. 

In  the  King's  Bench.     1696. 

Reported  5  Modern,  314. 

An  action  on  the  case  was  brought  upon  a  bill  of  exchange,  to 
which  the  defendant  pleaded,  that,  after  the  acceptance  of  the  bill, 
he  gave  a  bond  in  discharge  thereof. 

Upon  demurrer  to  this  plea,  it  was  objected,  that  it  amounted  to 
the  general  issue ;  for  the  debt  upon  the  bill  being  extinguished  by 
the  bond,  the  defendant  ought  to  have  pleaded  non  assumpsit,  and 
to  have  given  the  bond  in  evidence. 

And  the  court  seemed  of  that  opinion.  But  by  consent,  the 
defendant  pleaded  the  general  issue. 


PLEAS    IN   BAR.  433 

FITS   AND   ANOTHER  v.  FREESTONE. 
In  the  Common  Pleas.     1676. 

EePORTED    1    MODEBX,  210. 

In  an  action  grounded  upon  a  promise  in  law,  payment  before 
the  action  brouglit  is  allowed  to  be  given  in  evidence  upon  non 
assumpsit.  But  where  the  action  is  grounded  upon  a  special 
promise,  there  payment,  or  any  other  legal  discharge,  must  be 
pleaded. 

BUCKNALL  v.   SWINNOCK. 

In  the  King's  Bench.     1669. 

Reported  1  Modern,  7. 

Indebitatus  assumpsit  for  money  received  to  the  plaintiffs  use. 
The  defendant  pleads  specially,  that  ^jos^  assumiMonem  pr(xdict. 
there  was  an  agreement  between  the  plaintiff  and  defendant,  that 
the  defendant  should  pay  the  money  to  J.  S.,  and  he  did  pay  it 
accordingly.     The  plaintiff  demurs. 

Jones.  This  plea  doth  not  only  amount  to  the  general  issue,  but 
is  repugnant  in  itself.     It  was  put  off  to  be  argued. 

Note.     Judgment  was  given  for  the  plaintiff. 

DRAPER  V.   GLASSOP, 

In  the  King's  Bench.     1690. 
Reported  1  Lord  Raymond,  1.53. 

Per  Holt,  Chief  Justice,  if  the  defendant  pleads  non  assumpsit, 
he  cannot  give  in  evidence  the  statute  of  limitations,  because  the 
assumpsit  goes  to  the  pra:ter-tcnse ;  but  upon  nil  debet  pleaded,  the 
statute  is  good  evidence,  because  the  issue  is  joined  per  verba  de 
prwsenti,  and  without  doubt  nil  debet  by  virtue  of  the  statute ;  and 
it  is  no  debt  at  this  time,  though  it  was  a  debt.^ 

1  "  The  precise  day  on  which  a  material  fact  alleged  in  the  pleadings  took  pla^e  is 
in  most  cases  immaterial,  except  when  the  date  of  a  record,  or  other  writing,  or  some 
otlier  fact,  the  time  of  which  mnst  be  proved  by  a  written  docnment,  is  alleged." 
(JouLl  I'l.  88.  The  plaintiff  need  not  in  the  first  instance  show  himself  not  barred  by 
the  statute  of  limitations,  though  the  rule  is  otherwise  in  real  actions;  but  when  the 
statute  is  pleaded,  he  mnst  in  his  replication  aver  a  d:ite  within  the  statute.  It  is  a 
rule  of  pleading  that  some  time  should  be  declared  upon  ;  but  since  the  averment  is 
in  the  first  instance  immaterial,  the  allegation  of  the  later  date  is  no  departure.  1  Lev. 
ilO;  1  Salk.  222;  1  Stra.  21 ;  Jackson,  R.  Ac.  241. 

28 


434  CASES   ON    COMMON-LAW    PLEADING. 

JOHN   PRICE   V.  HENRY  P.   WEAVER. 

Supreme  Judicial  Coukt,  Massachusetts.     1859. 
^  Reported  13  Gkat,  273.     .       y 

The  statute  of  frauds  must  be  pleaded. 

Action  of  contract.  "And  the  plaintiff  says  that  one  William 
Field  owed  him  the  sum  of  sixteen  dollars  for  services  rendered  and 
labor  performed  by  the  plaintiff  for  said  Field,  and  that  the  plaintiff" 
was  about  to  sue  said  Field  therefor,  and  that  the  defendant,  in  con- 
sideration that  the  plaintiff  would  forbear  to  sue  the  said  Field, 
promised  and  agreed  to  pay  the  same  to  the  plaintiff,  and  the 
defendant  did  forbear  to  sue  the  said  Field,  and  the  defendant 
owes  him  the  said  sum." 

The  defendant  demurred  to  the  declaration,  and  assigned  this 
cause  for  demurrer:  "That  the  defendant's  promise  was  void,  as 
within  the  statute  of  frauds,  it  being  to  answer  for  the  debt  or 
default  of  another,  and  no  agreement  in  writing  or  memorandum 
thereof  was  ever  made  or  signed  by  the  defendant,  nor  is  any  copy 
of  any  agreement  set  out  by  the  plaintiff  in  his  declaration." 

A.  Potter,  for  the  defendant.  ...  It  appearing  on  the  face  of  the 
papers  that  the  promise  is  within  the  statute,  it  may  be  taken 
advantage  of  by  demurrer.  Walker  v.  Locke,  5  Cush.  90 ;  Tomhn- 
son  V.  Gell,  6  Ad.  &  El.  564 ;  Jones  v.  Ashburnham,  4  East,  455 ; 
Eead  v.  Nash,  1  Wils.  305. 

No  counsel  appeared  for  the  plaintiff. 

Metcalf,  J.  As  this  demurrer  contains  a  traverse,  or  denial  of 
facts,  it  is  wrong  in  form.  But  we  do  not  overrule  it  for  that 
reason.  We  treat  it,  as  the  counsel  for  the  defendant  treated  it, 
namely,  as  a  demurrer,  because  the  declaration,  though  it  sets 
forth  an  agreement  which  is  within  the  statute  of  frauds,  does  not 
allege  that  the  agreement  was  in  writing.  This,  however,  is  not 
a  legal  cause  for  demurrer.  The  statute  of  frauds  has  not  altered 
the  rules  of  pleading  in  law  or  equity.  A  declaration  on  a  promise 
which,  though  oral  only,  was  valid  by  the  common  law,  may  be 
declared  on  in  the  same  manner,  since  the  statute,  as  it  might  have 
been  before.  The  writing  is  matter  of  proof,  and  not  of  allegation. 
1  Saund.  276,  note  (2) ;  Steph.  PI.  1st  Amer.  ed.  376 ;  Browne  on 
St.  of  Frauds,  s.  505.  And  this  rule  of  pleading  is  not  changed 
by  the  Practice  Act  of  1852.  We  must,  tlierefore,  overrule  the 
demurrer.     If  the  defendant  shall  hereafter  rightly  answer  and  go 


PLEAS    IN    BAR.  435 

to  trial,  he  will  prevail,  unless  the  plaintiff  shall  prove  that  the 
agreement  declared  on  was  in  writing,  and  was  signed  as  the  statute 
of  frauds  (Rev.  Sts.  c.  74,  s.  1)  requires. 

Demurrer  overruled. 

MULRY  V.  MOHAWK   VALLEY   INSURANCE   COMPANY. 

Supreme  Judicial  Court,  Massachusetts.    1856.  / 

Reported  5  Geat,  541. 

For  whenever  a  defendant  rests  his  defence  upon  matter  not  included  in  the 
plaintiff's  declaration,  he  must  set  the  matter  out  in  clear  and  precise  terms. 

Bigelow,  J.  The  defendants  in  this  case  relied  at  the  trial  upon 
two  grounds  of  defence  to  the  claim  of  the  plaintiff  under  Ids  policy. 
One  was,  that  the  premises,  after  the  policy  was  made,  and  at  the 
time  of  the  tire,  were  used  for  the  sale  of  spirituous  liquors,  con- 
trary to  an  express  stipulation  on  the  part  of  the  plaintiff;  and 
that  the  policy  was  thereby  rendered  void.  This  ground  of  defence 
was  fully  stated  in  the  answer  of  the  defendants,  and  the  question 
of  fact  arising  thereon  was  submitted  to  the  jury,  who  returned 
their  verdict  on  this  point  in  favor  of  the  plaintiff. 

The  other  ground  of  defence  was,  that  spirituous  liquors  were 
kept  and  sold  on  the  premises  by  the  plaintiff  at  the  time  the  policy 
was  made  and  issued,  and  that  this  use  of  the  premises  was  not 
stated  by  the  plaintiff  in  his  application  for  insurance,  as  required 
by  the  conditiuns  annexed  to  the  policy,  and  that  for  this  reason, 
the  plaintiff  could  not  recover.  This  ground  of  defence  was  not 
set  out  by  the  defendants  in  their  answer.  It  appeared,  however,  in 
the  course  of  the  trial,  on  the  cross-examination  of  the  plaintiff's 
witnesses,  that  the  premises  were  so  used  by  the  plaintiff  at  tlie 
time  of  making  his  application  and  at  the  date  of  the  policy.  Upon 
this  state  of  facts,  which  was  not  controverted  by  the  plaintiff  at 
the  trial,  the  defendants  contended,  and  asked  the  court  to  rule 
that  the  plaintiff  upon  a  just  construction  of  the  policy,  and  of 
the  terms  and  conditions  annexed  to  it,  could  not  recover.  The 
judge  who  presided  at  the  trial  refused  so  to  rule,  and  it  is  upon 
this  refusal,  that  the  case  now  comes  before  the  whole  court. 

We  have  not  found  it  necessary  to  determine  whether  the  facts 
disclosed  by  the  plaintiff's  witnesses,  as  to  the  use  of  the  premises  at 
the  time  the  policy  was  issued,  would  render  it  void ;  because  we 
are  of  opinion  that  this  defence  is  not  open  to  the  defendants,  inas- 
much as  it  was  not  set  forth  in  their  answer.  Formerly,  by  plead- 
ing the  general  issue,  everything  was  open  to  proof  which  went  to 
show  that  the  plaintiff's  claim  was  invalid  through  fraud  or  illegality, 


•136  CASES    ON    CO.MMON-LAW   PLEADING. 

or  was  in  its  inception  void  in  law.  Hulet  v.  Stratton,  5  Cush.  539; 
Dixie  V.  Abbott,  7  Cush.  610.  But  the  Practice  Act,  St.  1852,  c.  312, 
by  abolishing  the  general  issue,  and  substituting  therefor  an  answer 
which  is  required  to  contain  precise,  certain,  and  substantial  aver- 
ments and  denials,  and  providing  that  every  matter  averred  in  the 
declaration,  and  not  denied  by  the  answer,  shall  be  deemed  to  be 
admitted,  effected  a  material  change,  not  only  in  the  forms  of  plead- 
ing, but  also  in  the  mode  of  making  up  issues  of  fact  between  the 
parties.  There  being  no  general  form  of  denying  the  plaintiff's 
right  to  recover,  the  defendant  is  compelled  by  ss.  14,  26,  to  deny 
every  substantive  fact  alleged  by  the  plaintiff  in  his  declaration,  or 
declare  his  ignorance  thereof,  and  leave  the  plaintiff  to  his  proof. 
These  provisions  enable  the  defendant,  by  an  answer  denying  the 
plaintiff's  allegations,  to  put  in  issue  only  such  matters  as  are 
properly  averred  in  the  plaintiff's  declaration.  The  plaintiff,  by 
s.  2,  is  required  to  make  no  allegations  except  those  which  he  is 
bound  by  law  to  prove.  Therefore  the  defendant,  by  merely  answer- 
ing the  allegations  in  the  plaintiff's  declaration,  can  try  only  such 
questions  of  fact  as  are  necessary  to  sustain  the  plaintiff's  case. 
He  cannot  thus  put  in  issue  matters  which  go  to  defeat  or  avoid  it ; 
and  it  is  accordingly  provided  by  s.  18,  that  the  answer  shall  set 
forth  in  clear  and  precise  terms  each  substantive  fact  intended  to  be 
relied  on  in  avoidance  of  the  action ;  by  which  are  intended  to  be 
embraced  all  matters  which  cannot  be  proved  under  the  denial  of 
the  allegations  in  the  plaintiff's  declaration.  It  follows,  as  a  neces- 
sary consequence,  that  whenever  a  defendant  intends  to  rest  his 
defence  upon  any  fact  which  is  not  included  in  the  allegations 
necessary  to  the  support  of  the  plaintiff^'s  case,  he  must  set  it  out 
in  clear  and  precise  terms  in  his  answer ;  and  as  the  plaintiff  is  not 
bound  to  aver  anything  which  tends  to  defeat  his  action,  or  which 
shows  that  his  claim  is  illegal  or  void  in  its  inception  or  otherwise, 
all  such  matters  must  be  set  out  and  averred  in  the  answer  under 
the  eighteenth  section  of  the  practice  act.  This  constitutes  the 
main  difference  between  the  system  of  pleading  established  by  the 
practice  act  and  that  which  was  previously  in  force.  Thus  under- 
stood and  administered,  it  is  plain  that  the  practice  act  is  intended 
to  bring  the  parties  to  a  cause  by  their  pleadings  to  clear  and  precise 
issues  of  fact,  and  all  immaterial  and  unnecessary  averments  are 
wholly  excluded. 

This  decision  is  but  an  extension  and  application,  to  other  forms 
of  declaration,  of  the  principle  of  construction  already  laid  down 
by  this  court  in  actions  on  the  common  counts,  or  on  an  account 
annexed.     Granger  v.  Ilsley,  2  Gray,  521. 


PLEAS   IN   BAR.  437 

Applying  this  construction  of  the  statute  to  the  answer  of  the 
defendants  in  the  case  at  bar,  it  is  manifest  that  the  defence  relied 
upon  was  not  open  to  the  defendants.  Proof  that  the  policy  was 
void  in  its  inception,  by  reason  of  misrepresentation  or  concealment 
on  the  part  of  the  plaintiff  of  material  facts,  was  clearly  in  avoid- 
ance of  the  action.  It  did  not  come  within  any  of  the  allegations 
contained  in  the  plaintiff's  declaration.  He  was  not  bound  to  aver 
or  prove  any  such  fact.  It  was  for  the  defendants  to  allege  and 
prove  it  as  a  distinct  substantive  ground  of  defence. 

Exceptions  overruled. 

J.  H.  Wakefield  for  the  defendants. 

W.  Gaston  &  J.  W.  May,  for  the  plaintiff.^ 


Section  III. 

TEOVEPu 

DEVOE   V.   DR.   CORIDON. 

In  the  King's  Bench.     1638. 

Reported  1  Keble,  305. 

In  trover  for  jewels,  it  was  said  by  Twisden,  there  is  no  plea  in 
trover,  but  a  release  or  not  guilty,  every  special  plea  in  justification 
being  but  tantamount;  but  the  defendant  being  in  the  king's  ser- 
vice command,  after  the  declaration  delivered,  the  court  gave  an 
imparlance  nisi,  but  upon  motion  the  next  day  of  the  kings  solici- 
tor, ordered  the  trial. 

"  The  rule  of  pleading  in  trover  seems  to  be  more  correctly  stated 
in  1  Tidd's  Practice,  598,  thus :  '  the  defendant  may  plead  specially 
anything  which,  admitting  the  plaintiff  had  once  a  cause  of  action, 
goes  to  discharge  it.'  Thus  a  release  may  be  pleaded,  as  was  al- 
ways held  ;  Lof[t,  323,  Anon.,  accord  with  satisfaction  ;  arbitrament 
and  award ;  former  recovery  for  the  same  conversion,  either  in 
trover  or  some  other  concurrent  action,  Yelv.  67 ;  Broome  v. 
Wooton,  1  Shower,  146  ;  Lechmore  v.  Toplady,  Skinner,  48,  57  ;  Foot 
V.  Rastall,  Pcllexf.  634 ;  T,  Raymond,  472  ;  s.c.  2  Ld.  Raymond,  1217  ; 
La  mine  v.  Dorrell. 

"  So  the  statute  of  limitations  may  be  specially  pleaded  in  trover, 
1  Lutw.  99  ;  Cowper  v.  Towers,  Sty.  178  ;  Coles  v.  Sibsye,  7  IMod, 
99 ;  Montague  v.  Sandwich,  3  Johns.  Rep.  523 ;  Read  v.  Markle, 

1  Part  of  the  opinion,  not  here  material,  is  omitted.  —  Ed. 


438  CASES    ox   COMMON-LAW   PLEADING. 

Overton's  Rep.  19 ;  White  v.  Edgman.  In  Markham  v.  Pitts'  Case, 
3  Leon.  295,  outlawry  of  the  plaintiff  was  pleaded  after  an  imparl- 
ance, and  was  held  to  be  a  good  bar.  These  two  last  instances,  in 
which  a  special  plea  in  bar  has  been  allowed,  come  fairly  perhaps 
within  the  spirit  of  the  rule  as  stated  by  Mr.  Tidd,  though  not 
within  the  letter  of  it."  Yelverton,  174  a,  note  by  Mr.  Justice 
Metcalf.. 

LYNNER   V.  WOOD. 
In  the  King's  Bench.     1629. 
Reported  Croke's  Charles,  157. 

Trover  for  divers  loads  of  corn.  The  defendant  pleads,  and  en- 
titles himself  to  them  as  tithes  severed;  and  because  the  plea 
amounts  but  to  "  not  guilty,"  the  plaintiff  demurred,  and  showed  for 
cause,  that  the  plea  was  therefore  not  good. 

Henden,  Serjeant,  would  have  maintained  this  plea,  because  it 
concerns  matter  in  the  realty,  viz.  tithes,  and  title  is  pleaded,  as 
it  were  a  confession  of  the  possession  in  the  plaintiff,  and  as  a  gen- 
eral bar  in  action  of  trespass,  and  color  given. 

Sed  non  allocatur ;  for  this  action  comprehends  title  in  it ;  and  a 
plea  which  amounts  but  to  a  general  issue  is  not  allowable,  it  being 
specially  shown  for  cause  of  demurrer.  Whereupon  without  argu- 
ment it  was  adjudged  for  the  plaintiff. 

ROCKWOOD  V.  FEASAR. 
In  the  Queen's  Bench.     1585.  *' 

Reported  Croke's  Elizabeth,  262. 

Action  of  trover  in  London.  The  defendant  pleaded,  that  long 
before  the  conversion  supposed  to  be,  J.  S.  was  possessed  of  these 
goods,  as  of  his  own  goods,  at  B.  in  Norfolk ;  and  that  he  before 
the  conversion  supposed  did  casually  lose  them,  and  they  came  to 
the  hand  of  J.  Palmer  by  trover,  who  gave  them  to  the  plaintiff, 
who  lost  them  in  London;  and  the  defendant  found  them,  and 
afterward  did  convert  them  to  his  own  use,  by  the  command  of 
the  said  J.  S.  as  it  was  lawful  for  him  to  do.  Tt  was  moved,  that 
this'  is  no  plea,  for  it  amounts  to  the  general  issue.  But  all  the 
justices  held  it  a  good  plea ;  for  it  confesseth  the  possession  and 
property  in  the  plaintiff,  against  all  but  the  lawful  owner.  —  Nota. 
This  plea  was  devised  by  Coke  to  alter  the  trial. 


PLEAS    IN    BAR. 

JOHNES   V.  WILLIAMS. 

Ix  THE  King's  Bench.     1606. 

Reported  Choke's  James,  165. 


439 


Trover  of  goods,  and  converting  them.  The  defendant  pleads 
"  sale  in  market,"  whereby  he  justifies  the  conversion.  And  it  was 
held  to  be  no  plea,  because  it  amounts  but  to  the  general  issue. 
And  ruled  accordingly,  that  if  he  did  not  plead,  a  nihil  dieit  should 
be  entered. 


Section  IV. 
TRESPASS. 

(a)    To  Plaintiff's  Goods. 

"  In  trespass  de  bonis  asportatis  the  plea  of  not  guilty  operates  as 
a  denial  of  the  defendant  having  committed  the  trespass  alleged,  by 
taking  or  damaging  the  goods  mentioned,  but  not  of  the  plaintifi"s 
property  therein."     Chitty,  Pleading,  *535. 

ANONYMOUS. 
In  the  Queen's  Bench.     1709. 
Reported  2  Salkeld,  643. 

Trespass  for  taking  his  cattle.  The  defendant  pleaded  that  he 
was  possessed  of  a  close  for  a  term  of  years,  and  the  cattle  tres- 
passed therein,  etc.  The  plaintiff  demurred,  and  judgment  was 
given  for  the  defendant,  though  he  showed  no  title,  but  justified 
upon  a  bare  possession.  And  this  difference  was  taken  by  Holt, 
C.  J.  Where  the  action  is  transitory,  as  trespass  for  taking  goods, 
the  plaintiff  is  foreclosed  to  pretend  a  right  to  the  place ;  nor  can 
it  be  contested  upon  the  evidence  who  had  the  right;  therefore 
possession  is  justification  enough.  But  in  trespass  quare  clamum 
fregii  it  is  otherwise,  because  there  the  plaintiff  claims  the  close, 
and  the  right  may  be  contested. 


440  CASES    ON    COMMON-LAW   PLEADING. 


/ 


KNAPP  V.  SALSBURY. 

At  Nisi  Prius,  coram  Lord  Ellenborough,  C.  J.    Xov.  17,  ISIO. 
Reported  in  2  Campbell,  500. 

Trespass  for  running  against  the  plaintiff's  post-chaise,  in  which 
he  was  travelling  along  the  highway,  with  a  cart,  and  killing  one  of 
the  horses  drawing  the  post-chaise,  by  the  shafts  of  the  cart.  Plea, 
not  guilty. 

The  defence  relied  upon  was,  that  the  chaise  and  the  cart  were 
travelling  on  the  road  in  opposite  directions,  and  that  the  collision 
between  them  took  place  through  the  negligence  of  the  plaintiff, 
or  by  mere  accident,  and  without  any  default  on  the  part  of  the 
defendant. 

Lord  Ellenborough.  These  facts  ought  to  have  been  pleaded 
specially.  The  only  thing  to  be  tried  under  the  plea  of  not  guilty 
is,  whether  the  defendant's  cart  struck  the  plaintiff's  chaise  and 
killed  his  horse.  That  it  did  is  now  admitted;  and  the  intention 
of  the  defendant  is  immaterial.  This  is  an  action  of  trespass.  If 
what  happened  arose  from  inevitable  accident,  or  from  the  negli- 
gence of  the  plaintiff,  to  be  sure,  the  defendant  is  not  liable ;  but  as 
he  in  fact  did  run  against  the  chaise,  and  killed  the  horse,  he  com- 
mitted the  acts  stated  in  the  declaration,  and  he  ought  to  have  put 
upon  the  record  any  justification  he  may  have  had  for  doing  so. 
The  plea  denying  these  acts  must  clearly  be  found  against  him. 

Verdict  for  the  plaintiff. 

Park  and  Knapp,  for  the  plaintiff, 

Jervis,  for  the  defendant. 

PP:ARCY   v.  WALTER. 

At  Nisi  Prius,  coram  Gaselee,  J.     1834. 

Reported  6  Carrington  &  Payne,  232. 

Under  "  Not  guilty  "  in  trespass,  matter  may  be  given  in  evidence  which 
shows  that  tlie  defendant  did  not  do  the  act  complained  of. 

Trespass  for  driving  a  gig  against  a  horse  of  the  plaintiff's  and 
wounding  it,  in  consequence  of  which  it  died.     Plea,  not  guilty. 

Coleridge,  Serjt.,  for  the  plaintiff.  The  inquiry  to-day  is 
limited  to  the  ascertaining  whether  the  defendant  did  or  did  not 
drive  against  the  plaintiff's  horse.  Any  inquiry  as  to  whether  the 
injury  arose  from  the  plaintiff's  negligence,  or  from  the  negligence 


PLEAS   IN    BAR.  441 

of  both  plaintiff  and  defendant,  or  from  inevitable  accident,  cannot 
be  gone  into  here,  as  the  general  issue  only  is  pleaded. 

It  appeared  that  the  defendant's  gig  and  a  van  of  the  plaintiff's 
were  both  in  motion,  going  in  opposite  directions  at  the  time  when 
the  injury  was  done,  which  consisted  of  the  shaft  of  the  defendant's 
gig  entering  the  shoulder  of  one  of  the  plaintifl[''s  horses,  in  con- 
sequence of  whicli  it  died.  On  the  part  of  the  plaintiff  a  witness 
swore  that  the  defendant,  being  intoxicated,  drove  against  the 
plaintiff's  horse. 

Bompas,  Serjt.,  for  the  defendant.  The  question  is,  whether  the 
witness  is  to  be  believed,  who  swears  to  the  defendant's  driving 
against  the  plaintiff's  horse  ?  In  point  of  law,  if  it  was  inevit- 
able accident,  it  may  be  proved  under  the  general  issue.  Goodman 
V.  Taylor.^ 

Gaselee,  J.  It  may  be  shown  under  the  general  issue,  that, 
instead  of  the  defendant  driving  against  the  plaintiff,  the  plaintiff 
drove  against  the  defendant. 

Coleridge,  Serjt.,  assented.  4 

Witnesses  were  called  on  the  part  of  the  defendant.* 

Gaselee,  J.,  told  the  jury  that  the  question  was,  how  the  shaft 
got  into  the  horse's  shoulder  ?  Whether  the  defendant  drove  the 
shaft  against  the  van  horse,  or  the  van  horse  was  driven  against 

the  shaft  ?  

Verdict  for  the  plainJ^^|_Da^iages,  £20. 

Coleridge,  Serjt.,  and  Butt,  for  the  plaintiff. 

Bompas,  Serjt.,  and  Hoggins,  for  the  defendant 

[Attorneys,  Horsley  and  Taylor.] 


ij^HDajiia 

^  \ 

lantT  1 


MILMAN  V.  DOLWELL. 
At  Nisi  Prius,  coram  Lord  Ellenborough,  C  J.     1810. 
Reported  2  Campbell,  378. 
Or  which  denies  the  plaintiff's  title  to  the  subject  of  the  trespass. 

This  was  an  action  of  trespass  for  cutting  the  plaintiffs  barges 
from  their  moorings  in  the  river  Thames ;  whereby  they  had  been 
set  adrift  and  been  injured. 

It  appeared  that  at  a  time  when  there  was  a  great  quantity  of 
ice  in  the'  Thames,  the  defendant  took  two  barges  of  the  plaintiff 
from  the  middle  of  the  river,  where  they  were  moored,  to  the 
opposite  shore,  and  that  one  of  them  was  immediately  after  dis- 

1  See  the  cases  of  Boss  i-.  Litton,  5  C.  and  P.  407,  and  Goodman  v.  Taylor,  5  C. 
and  P.  410. 


442  CASES    ON    COMMON-LAW   PLEADING. 

covered  to  have  a  hole  in  its  bottom ;  but  there  was  no  evidence  to 
show  how  this  had  been  occasioned. 

Garrow,  for  the  defendant,  offered  to  prove,  that,  at  the  time  of 
the  supposed  trespass,  these  barges  were  in  the  greatest  danger 
of  being  carried  away  by  the  ice ;  that  if  he  had  not  interfered, 
they  most  probably  would  have  been  destroyed ;  that  he  did  what 
was  prudent  and  most  for  the  plaintiff's  advantage  to  be  done  under 
the  circumstances ;  and  that  he  had  been  employed  by  the  plaintiff 
generally  to  take  charge  of  the  barges,  and  must  be  presumed  to 
have  had  his  authority  to  remove  them  from  a  place  of  danger  to  a 
place  of  safety. 

Lord  Ellenborough.  These  facts  should  have  been  specially 
pleaded.  I  cannot  admit  evidence  of  them  under  the  plea  of  not 
guilty  ;  the  issue  joined  upon  which  is,  whether  the  defendant 
removed  barges  belonging  to  the  plaintiff  from  their  moorings,  not 
whether  he  was  justified  in  doing  so. 

Garrow  argued  that  the  plea  of  not  guilty  merely  denied  the 
committing  of  any  trespass ;  and  it  was  impossible  to  say  that  any 
trespass  was  committed,  if  the  barges  were  removed  by  the  plaintiffs 
own  orders,  either  express  or  implied.  The  case  was  the  same  as 
if  the  plaintiff  had  stood  by  and  directed  how  the  thing  was  to  be 
done ;  and  the  unmooring  of  the  barges  must  be  considered  the  act 
of  the  plaintiff  ratjier  than  of  the  defendant. 

Lord  EllenborjMjgh.  The  defendant  allows  that  he  intermeddled 
with  goods  whicA«-,were  the  property  and  in  the  possession  of  the 
plaintiff.  By  so  doing  he  is  presumed  to  be  a  trespasser ;  and  if 
he  has  any  matter  of  justification,  he  must  put  it  upon  the  record. 
The  plea  of  not  guilty  only  denies  the  act  done,  and  the  plaintiff's 
title  to  the  subject  of  the  trespass.  If  the  defendant  has  any 
autliority,  general  or  particular,  express  or  implied,  from  the 
plaintiff,  this  must  be  specially  pleaded,  by  way  of  excuse. 

Garrow  then  offered  to  prove  that  these  barges  were  frozen  to 
some  others  belonging  to  J.  S.,  by  whom  the  defendant  was 
employed  to  get  the  latter  ashore,  and  that  it  was  utterly  impos- 
sible to  do  this  without  bringing  the  former  along  with  them. 

Lord  Ellenborough.  If  the  necessity  was  inevitable,  and  the 
barges  of  the  third  person  by  whose  express  orders  the  defendant 
acted  must  otherwise  have  been  destroyed,  this  might  have 
amounted  to  a  justification ;  but,  like  the  first  set  up,  it  must  have 
been  put  upon  the  record. 

The  jury  found  a  verdict  for  the  plaintiff,  with  one  farthing 
damages. 

Garrow  afterwards  moved  for  a  new  trial,  on  the  ground  that  the 


PLEAS   IN    BAR.  443 

evidence  had  been  improperly  rejected;  and  further  contended, 
that  the  action  should  have  been  case  and  not  trespass ;  but  the 
court  were  against  him  on  both  points,  and  refused  a  rule  to  show 
cause.-^ 

Park,  Jekyll,  and  Lawes,  for  the  plaintiff. 
Garrow  and  Topping,  for  the  defendant. 
[Attorneys,  Evans  and  Hill] 

FURNEAUX  V.  FOTHERBY  AND   CLARKE. 

At  Nisi  Pkius,  coram  Lord  Ellenbokough,  C.  J.     1815^ 

Reported  4  Campbell,  *136. 

Hence,  if  the  defence  is  that  the  goods  were  taken  under  license  by  law,  it 
should  be  pleaded. 

Trespass  for  breaking  and  entering  the  plaintiff's  house  and  dis- 
training his  goods.     Plea,  the  general  issue. 

It  was  proved,  that  the  defendant,  Fotherby,  on  the  1st  of 
October  last,  did  enter  the  plaintiff's  house,  and  make  the  distress, 
but  there  was  no  evidence  against  Clarke. 

The  defence  was,  that  the  plaintiff  had  held  another  house  as 
tenant  to  the  defendant  Clarke;  that  the  goods  distrained  were 
clandestinely  and  fraudulently  conveyed  away  from  this  house  on 
this  28th  of  September,  to  prevent  the  landlord  from  distraining 
them  for  the  arrears  of  rent  to  become  due  the  following  day,  and 
that  they  were  within  30  days  afterwards  taken  and  seized  as  a 
distress  for  the  said  arrears  of  rent. 

Holt,  for  the  plaintiff,  first  contended,  that  there  was  no  right  to 
follow  these  goods,  as  they  were  removed  before  the  rent  became 
due,  Watson  v.  Main,  3  Esp.  15  ;  and,  2dly,  that  at  all  the  events 
this  was  no  defence  under  the  general  issue,  as  the  goods  were  not 
taken  upon  the  premises  for  which  the  rent  became  due,  Vaughan 
V.  Davis,  1  Esp.  257. 

Lord  Ellenborough.  Upon  the  first  point  I  entertain  consider- 
able doubts,  and  if  the  cause  had  turned  upon  that,  I  should  have 
reserved  it  for  the  opinion  of  the  court.  Where  goods  are  fraudu- 
lently removed  from  the  premises  in  the  night,  to  prevent  the 
landlord  from  distraining  upon  them  for  arrears  of  rent  to  become 
due  next  morning,  the  case  certainly  comes  within  the  mischief 
intended  to  be  remedied  by  11  Geo.  IL  c.  19,  and  there  is  some 
ground  to  contend  that  it  comes    within  the    provisions  of  that 

1   Vide  Com.  Dig.  Pleader,  3  M.  20-39  ;  Bull.  N.  P.  90. 


444  CASES    ON   COMMON-LAW    PLEADING. 

statute.     But,  upon  the  2(1  point,  lam  clearly  of  opinion,  that  the 
defendant  was  bound  to  justify  specially.^ 

The  plaintiff  had  a  verdict  against  Fotherby ;  and  Lord  Ellen- 
borough  granted  a  certificate  under  8  &  9  W.  III.  c.  11,  that  there 
was  reasonable  ground  to  join  Clarke  as  a  defendant,  for  the  pur- 
pose of  depriving  him  of  a  right  to  costs.^ 

Holt  and  E.  Lawes,  for  the  plaintiff. 
Parkj  for  the  defendant. 

(b)    To  Plaintiff'' s  Servant. 

TORRENCE  v.  GIBBONS. 

In  the  Queen's  Bench.     1843. 

Reported  in  5  Queen's  Bench  Reports,  297. 

Declaration  for  that  defendant,  to  wit,  on,  etc.,  and  on  divers  other 
days,  etc.,  debauched  Josephine  Amelia  Torrence,  the  daughter  of 
plaintiff,  "  who  during  all  the  time  aforesaid  was,  and  still  is,  the 
servant  of  the  plaintiff';"  whereby  she  became  pregnant,  till  she 
was  dehvered,  etc. ;  special  damage  for  loss  of  service,  expenses,  etc. 

Plea,  "  that  the  said  J.  A.  Torrence  was  not  the  servant  of  the 
plaintiff,  in  manner  and  form,"  etc. 

Demurrer,  assigning  for  causes  that  the  plea  is  argumentative  and 
insufficient  in  this,  to  wit,  that  defendant,  instead  of  simply  pleading 
that  he  is  not  guilty  of  the  grievances  set  forth  in  the  declaration, 
hath  denied  the  same  in  a  circuitous  and  argumentative  manner,  by 
alleging  that  the  said  J.  A.  T.  was  not  the  servant  of  plaintiff ;  for, 
if  J.  A.  T.  was  not  the  servant  of  plaintiff,  defendant  could  not  be 
guilty  of  the  grievance  set  forth  in  the  declaration  ;  and  for  that 
the  plea  amounts  to  not  guilty,  and  ought  to  have  been  pleaded  in 
that  form. 

Joinder  in  demurrer. 

Atherton,  for  the  plaintiff.  The  fact  of  the  service  would  be  put 
in  issue  by  a  plea  of  not  guilty.  Such  a  plea  puts  the  "  wrongful 
act  "  in  issue.  R.  Hil.  4  Will.  IV. ;  Pleadings  in  Particular  Actions, 
IV.  1 ;  that  is,  either  the  act  or  that  which  constitutes  its  wrongful- 
ness. In  trover,  not  guilty  denies  the  conversion  only,  not  the 
title ;  in  an  action  for  obstructing  a  right  of  way,  the  obstruction 
only,  not  the  right ;  but  in  an  action  for  a  nuisance,  it  denies  "  that 
the  defendant  carried  on  the  alleged  trade  in  such  a  way  as  to  be 

1  Vide  1 1  Geo.  II.  c.  19,  §  1,  2  ;  2  Wms.  S.  284  (n.  2). 

2  Vide  Aaron  v.  Alexander,  3  Campb.  36. 


PLEAS   IN    BAE.  445 

a  nuisance  to  the  occupation."  [Lord  Denman,  C.  J.  There  is  no 
illegality  if  there  be  no  annoyance.]  Then  to  which  class  does  this 
action  belong  ?  If  there  be  no  illegality  independently  of  some  par- 
ticular fact,  that  fact  is  put  in  issue.  The  mere  seduction  of  the 
daughter  is,  legally  speaking,  no  injury.  It  is  not  like  a  trespass 
to  the  person  of  the  plaintiff,  which  primci  facie  is  an  injury.  It 
may  be  that,  if  the  relation  could  have  been  formally  alleged  by 
way  of  inducement,  the  plea  of  not  guilty  would  have  admitted  it; 
that  is  so  in  trover.  But  here  the  form  of  the  declaration  makes 
the  relation  the  gist  of  the  complaint.  The  whole  action  depends 
upon  the  resulting  damage,  to  which  the  relation  is  essential.  The 
case  resembles  Sutherland  v.  Pratt,  11  M.  &  W.  296.  [Lord  Denman, 
C.  J.  There,  unless  the  contract  was  made  with  the  plaintiff,  the 
alleged  contract  was  not  proved.] 

Byles,  Serjeant,  contra.  The  relation  is,  in  effect,  mere  induce- 
ment. The  case  is  the  same  as  if  the  declaration  commenced  by 
reciting  that  the  plaintiff's  daughter  was  his  servant.  The  analogy 
of  an  action  for  obstructing  a  right  of  way  applies.  In  Taverner  v. 
Little,  a  declaration  in  trespass  alleged  that  defendant  was  possessed 
of  a  cart  and  horse,  and  complained  of  injury  done  by  negligent 
driving  of  them :  and  it  was  held  that  not  guilty  admitted  that  the 
cart  and  horse  were  in  defendant's  possession.  That  decision  was 
acted  on  in  Hart  v.  Crowley,  12  A.  &  E.  378.  It  is  not  true  that 
the  wrongfulness  of  the  act  is  put  in  issue  by  not  guilty ;  Frankum 
V.  The  Earl  of  Falmouth  decides  the  contrary.  Holloway  v.  Abell, 
7  C.  &  P.  528,  is  the  only  authority  to  be  found  in  favor  of  the 
plaintiff:  that  was  merely  a  decision  at  7iisi  jJ^ius  ;  and  the  verdict 
there  prevented  the  question  from  being  raised  in  banc,  as  the  jury 
afhrmed  the  service.  In  an  action  for  criminal  conversation,  not 
guilty  would  not  put  the  marriage  in  issue. 

Atherton,  in  reply.  No  attempt  has  been  made  to  get  rid  of  the 
distinction  suggested  between  cases  where  the  act  is  a  prima  facie 
cause  of  action,  and  those  where  the  damage  arising  from  a  particu- 
lar relation  is  the  very  gist  of  the  action.  That  distinction  explains 
all  the  authorities  cited  on  the  other  side.  Thus  the  obstruction  of 
a  way  is  prima  facie  an  injury.  But  there  is  no  legal  injury  in 
seduction,  unless  the  relation  of  servant  exist.  [Coleridge,  J.  In 
an  action  for  words  injurious  only  in  respect  of  the  plaintiff"s  trade, 
not  guilty  does  not  put  the  trade  in  issue.]  The  example  stated  in 
the  general  rule  as  to  an  action  for  nuisance  applies. 

Lord  Denman,  C.  J.  It  seems  to  me  that  the  example  is  rather 
against  you.  No  one  can  complain  of  an  act  that  is  not  offensive 
at  all.     But,  besides,  the  owner  is  the  only  person  who  j  can  com- 


446  CASES    ON    COMMON-LAW   PLEADING. 

plain ;  his  ownership  is  essential  to  the  right  of  action  ;  yet  that  is 
not  traversed  by  not  guilty.  So  here  the  seduction  injures  the 
plaintiff,  because  he  is  the  master  of  the  party  seduced ;  and  the 
same  rule  must  be  applied. 

Williams,  J.,  concurred. 

Coleridge,  J.  I  am  of  the  same  opinion.  I  may  mention  that 
Mr.  Justice  Littledale,  before  the  new  rules,  considered  the  service 
to  be  a  necessary  result  of  the  residence  of  the  daughter  with  the 
father.  He  once,  in  an  undefended  cause.  Maunder  v.  Venn,  Moo. 
&  M.  323,  in  which  I  was  counsel,  where  the  residence  was  proved, 
held  it  unnecessary  to  give  evidence  of  acts  of  service. 

Wightman,  J.,  concurred.  Judgment  for  defendant. 

(c)    To  Plaintiff's  Land. 

JONES   V.   CHAPMAN   AND   OTHERS. 

In  the  Exchequer  Chamber.     1849. 

Reported  in  18  Law  Journal  Reports,  Exchequer,  456. 

Before  the  Hilary  Rules,  the  defendant  under  not  guilty  to  trespass  qu.  cl. 
fr.  might  give  in  evidence  title  in  himself  or  in  another  by  whose  command 
he  entei'ed. 

Trespass  for  breaking  and  entering  the  plaintiff's  dwelling-house. 

Plea,  that  the  dwelling-house  in  the  declaration  mentioned  was 
not  at  the  time  when,  etc.,  the  dwelling-house  of  the  plaintiff,  modo 
et  forma  ;  upon  which  issue  was  joined. 

At  the  trial,  whicli  took  place  before  Parke,  B.,  at  the  summer 
assizes  for  the  county  of  Denbigh,  in  1845,  that  learned  judge  told 
the  jury  that  they  ought  to  find  the  issue  for  the  defendant,  if  they 
were  satisfied  by  the  evidence  on  the  part  of  the  defendant  that  at 
the  said  time  when,  etc.,  one  Harriet  Middleton  was  entitled  to  the 
possession  of  the  dwelling-house,  and  the  defendant  had  committed 
the  alleged  trespass  under  her  authority.  To  this  direction  the  coun- 
sel for  the  plaintiff  tendered  a  bill  of  exceptions  to  the  effect  that  the 
learned  judge  should  have  directed  the  jury  to  find  for  the  plaintiff, 
if  they  were  satisfied  by  the  evidence  that  at  the  time  when,  etc., 
he  was  in  the  actual  possession  of  the  dwelling-house.  Upon  the 
argument  before  this  court,^  on  the  1st  of  December,  1847, 

Welsby  appeared  on  behalf  of  the  plaintiff ;  and 

Peacock,  on  behalf  of  the  defendant.  Cur.  adv.  vult. 

1  Wilde,  C.  J.,  Coleridge,  J.,  Coltman,  J.,  Maule,  J.,  Wightman,  J.,  Erie,  J.,  and 
V.  Williams,  J. 


PLEAS   IN    BAR.  447 

The  court  differing  in  opinion,  their  lordships  now  delivered  their 
judgments  seriatim. 

Williams,  J.,  after  stating  the  facts  of  the  case,  proceeded  as  fol- 
lows :  In  this  case  the  general  question  is  raised  for  our  decision, 
as  a  court  of  error,  whether  under  a  traverse  of  the  allegation  in  the 
declaration  of  trespass  quare  dausuni  /regit,  that  the  close  was  the 
close  of  the  plaintiff,  the  defendant  is,  or  is  not,  at  liberty  to  show 
title  in  himself  or  some  other  person,  under  whose  authority  he 
claims  to  have  acted.  I  am  of  opinion  that  he  is.  I  have  not  formed 
this  opinion  without  hesitation,  because  it  is  in  direct  opposition  to 
the  judgment  of  the  court  of  Queen's  Bench,  in  Whittington  v. 
Boxall,  5  Q.  B.  Eep.  139  ;  s.  c.  12  Law  J.  Rep.  (n.  s.)  Q.  B.  318  ;  but 
on  consideration  of  that  judgment,  and  of  the  authority  and  reason- 
ing on  which  it  is  founded,  it  appears  to  me  to  have  been  wrongfully 
given.  The  question  turns  on  the  construction  of  the  new  rules  of 
pleading  of  Hilary  Term,  4  Will.  IV.  Before  those  rules  it  had 
long  been  settled  law  that  under  the  general  issue  of  not  guilty,  in 
trespass  quare  clausum  /regit  the  defendant  might  give  evidence 
of  title  in  himself  or  in  another  by  whose  command  he  entered. 
The  case  of  Argent  v.  Durrant,  8  Term  Eep.  403,  shows  conclu- 
sively the  establishment  of  this  doctrine,  and  also  discloses  the 
principle  on  which  it  was  grounded,  namely,  that  the  evidence  falsi- 
fied the  declaration  of  the  plaintiff,  inasmuch  as  it  proved  that  the 
defendant  did  not  break  the  plaintiff's  close,  as  the  declaration  set 
forth.  Thus  it  appears  at  the  time  the  New  Rules  were  made  the 
general  issue  in  trespass  quare  clausum  /regit,  by  reason  of  its 
traversing  the  allegation  in  the  declaration,  that  the  close  in  which, 
etc.,  was  the  close  of  the  plaintiff,  operated  as  a  denial,  not  only  of  his 
possession,  but  also  of  his  right  of  possession  as  against  a  defendant 
lawfully  entitled  thereto.  But  by  the  rule  of  Hilary  Term,  4  Will.  IV. 
in  trespass  it  is  ordered,  '-that in  actions  of  trespass  quare  clai/sum 
/regit,  the  plea  of  'not  guilty '  shall  operate  as  a  denial  that  the  defend- 
ant committed  the  trespass  alleged  in  the  place  mentioned,  but  not  as 
a  denial  of  the  plaintiff's  possession  or  right  of  possession  of  that 
place,  which,  if  intended  to  be  denied,  must  be  traversed  specially." 
The  alteration  which  this  rule  introduces  appears  to  be  this,  that  the 
defendant,  if  he  intends  to  deny  the  plaintiff's  possession,  or  right  of 
possession,  must,  instead  of  denying  it  as  heretofore  by  the  general 
issue,  deny  it  by  traversing  it  specially.  It  must  be  confessed  that 
the  language  employed  in  this  rule  is  not  very  happily  chosen,  for 
the'expression,  "  a  special  traverse,"  usually  bears  a  particular 
technical  sense,  namely,  that  of  a  traverse  containing  an  inducement 
and  absque  Jioc,  in  which  sense  it  is  scarcely  passible  it  could  have 


448  CASES   ON   COMMON-LAW   PLEADING. 

been  intended  to  have  been  used ;  and  I  understand  that  the  rule 
in  this  respect  is  merely  in  order  to  enable  the  defendant  to  dispute, 
if  he  is  the  wrong-doer,  the  possession,  or,  if  he  claims  title,  the 
ri^ht  of  possession,  —  the  allegation  in  the  declaration,  that  the 
close  in  which,  etc.,  is  the  close  of  the  plaintiff,  must  be  denied  spe- 
cially by  a  particular  traverse,  in  contradistinction  to  being  denied 
generally  as  heretofore,  by  the  plea  of  "  not  guilty."  It  is  true,  that 
by  the  terms  of  the  rule,  taken  literally,  it  is  not  this  allegation  of 
the  plaintiff's  possession,  or  right  to  possession,  which  is  to  be 
traversed ;  but  it  is  a  principle  of  pleading  that  the  defendant  can- 
not traverse  any  matter  which  is  not  alleged  or  necessarily  implied 
in  the  declaration,  and  the  possession,  or  right  of  possession,  is  only 
alleged  or  necessarily  implied  in  a  declaration  in  trespass  quare 
claumm  f regit, -A^  being  included  in  the  allegation  that  the  close  in 
which,  etc.,  is  the  close  of  the  plaintiff.  If  this  be  so,  then  the  de- 
fendant in  the  present  case,  inasmuch  as  by  the  plea  in  question 
he  has  denied  the  plaintiff's  allegation  that  the  dwelling-house  in 
which,  etc.,  was  his  dwelling-house,  must  be  considered  as  specially 
traversing  the  plaintiff's  right  to  possession  thereof,  and  is  therefore 
within  the  meaning  of  the  New  Rules.  He  has  put  himself  in  the 
same  situation  as  that  in  which  he  would  have  been  before  the 
New  Eules,  if  he  had  traversed  it  generally  by  pleading  not  guilty, 
and  he  is  consequently  at  liberty  to  show  title  in  himself  or  in  an- 
other, under  whose  authority  he  acted.  For  these  reasons,  I  am  of 
opinion  that  the  judge's  direction  at  the  trial  was  correct,  and  that 
our  judgment  on  this  writ  of  error  ought  to  be  for  the  defendant.^ 

1  Wilde,  C.  J.,  Erie,  J.,  and  Coltraan,  J.,  delivered  opinions  substantially  coincid- 
ing with  that  of  Williams,  J.  Maule,  J.,  concurred  with  the  majority  in  their  conclu- 
sion, though  not  in  their  reasoning.  "  I  agree  with  the  exception  of  the  plaintiff  in 
error  that  the  question  raised  by  the  issue  of  not  possessed  is,  whether  the  plaintiff  was 
in  actual  posse.ssion  or  not;  but  it  seems  to  me  that  as  soon  as  a  person  is  entitled  to 
possession  and  enters  in  the  assertion  of  that  possession,  or,  which  is  exactly  the  same 
thing,  any  other  person  enters  by  the  command  of  that  lawful  owner  so  entitled  to  pos- 
session, the  law  immediately  vests  the  actual  possession  in  the  person  who  so  entered." 
Coleridge,  J.,  and  Wightman,  J.,  delivered  dissenting  opinions,  on  the  ground  that  the 
plea  of  not  possessed  put  in  issue  only  the  actual  possession  of  the  plaintiff  ;  Coleridge, 
J.,  taking  the  view  that  a  defendant  who  wished  to  put  in  issue  the  plaintiff's  right  of 
possession,  must  resort  to  a  di.stinct  specific  traverse  to  that  effect ;  while  Wightman, 
J.,  thought  that  a  defendant  who  relied  on  right  of  possession  either  in  himself  or  some 
third  person  under  whom  he  acted,  should  plead  such  right  of  possession  by  way  of 
confession  and  avoidance.  The  full  opinions  have  been  omitted  on  account  of  their 
length. —  Note  by  James  Barr  Ames,  Cases  on  Tleading,  105. 


PLEAS   IN   BAR.  449 

COWLISHAW  V.  CHESLYN. 

EXCHKQCER  OF  PlEAS.   1830. 

Repokted  1  Cromptox  and  Jervis,  48. 

A  traverse  by  the  defendant  of  one  only  of  two  or  more  material  allega- 
tions is  so  far  an  implied  admission  of  the  matter  not  denied,  that  the  pleader 
is  estopped  at  the  trial  to  introduce  evidence  in  denial  of  the  allegation 
untraversed. 

Trespass  quare  clausum  /regit.  Pleas,  first,  a  right  of  way  by 
prescription.  Secondly,  that,  in  1762,  one  Anne  Covvlishavv  was 
seised  in  fee,  and  being  so  seised,  by  a  deed,  lost  by  time  and  acci- 
dent, granted  a  right  of  way  ;  and,  thirdly,  a  common  highway. 
The  plaintiff  replied  to  the  first  plea,  traversing  the  prescription ; 
to  the  second  plea,  that  Anne  Cowlishaw  did  not  grant  moclo  et 
forma;  and  to  the  third  plea,  denying  the  common  highway. 

At  the  trial  before  Garrow,  B.,  at  the  last  Lent  Assizes  for  the 
county  of  Leicester,  the  first  plea  was  disproved,  it  appearing  that 
all  the  ancient  roads  over  the  locus  in  quo  had  been  extinguished 
by  an  enclosure  act ;  and  the  jury  negatived  the  common  highway 
pleaded  in  the  third  plea.  The  case,  therefore,  depended  on  the 
second  plea,  and  upon  that  plea  there  was  conflicting  evidence  as 
to  the  exercise  of  the  alleged  right  of  way.  The  plaintiff  offered 
evidence  of  old  deeds,  and  of  a  will,  to  show  that  Anne  Cowlishaw 
had  only  an  estate  as  a  co-trustee  with  one  Farnell,  in  trust  for 
Anne  Cowlishaw's  son,  who,  at  the  time  of  the  supposed  grant,  was 
a  minor ;  and  he  contended  that  this  evidence  was  admissible  on 
the  issue  in  question,  for  the  purpose  of  showing  that  Anne  Cow- 
lishaw was  not  likely  to  have  made  the  grant,  not  having  had  any 
legal  right  so  to  do.  The  defendant's  counsel  objected  to  the  evi- 
dence, on  the  ground  that  Anne  Cowlishaw's  seisin  in  fee  was 
admitted  on  the  record,  and  that  the  plaintiff  was  estopped,  by  the 
state  of  the  pleadings,  from  giving  any  evidence  to  negative  that 
fact.  The  learned  judge  received  the  evidence,  reserving  the  ques- 
tion of  its  admissibility  for  the  opinion  of  the  court.  The  defend- 
ant then  offered  evidence  of  an  award  of  the  locus  in  quo,  made 
under  an  enclosure  act,  to  Anne  Cowlishaw,  which  alone,  they 
contended,  vested  the  soil  in  her  ;  but  which,  the  plaintiff  contended, 
vested  it  in  the  persons  in  whom  the  legal  estate  in  the  land,  to 
which  this  allotment  was  made,  had  been  before  vested  under  the 
will.i     The  learned  judge  left  the  whole  of  the  evidence  to  the 

1  As  to  this  point,  which  it  became  unnecessary  to  decide  in  the  principal  case,  see 
Doe  dem.  Sweeting  v.  Hellard,  9  B.  &  C  789  (E.  C.  L.  K.  vol.  17). 

29 


450  CASES   ON   COMMON-LAW   PLEADING. 

jury,  and  directed  them  to  consider  whether  there  was  such  evi- 
dence of  the  use  of  the  right  of  way,  as  to  lead  them  to  suppose 
that  Anne  Cowlishaw  had  made  the  grant  in  question  ;  and  he  told 
them,  that  they  might  assume,  for  the  purposes  of  their  verdict, 
that  she  had  a  legal  right  to  make  such  grant.  The  jury  found  a 
verdict  for  the  defendant  upon  the  second  plea. 

Balguy  had  obtained  a  rule  to  enter  a  verdict  for  the  plaintiff  on 
the  second  plea,  or  for  a  new  trial,  against  which  cause  was  now 
shown  by  — 

Denman,  K.  N.  Clarke,  and  Humfrey.^  —  On  these  pleadings,  the 
only  question  was  on  the  grant,  as  no  issue  was  taken  on  the  seisin 
of  Anne  Cowlishaw,  as  alleged  in  the  second  plea.  If  the  plaintiff 
on  this  issue  could  be  allowed  to  give  in  evidence  documents  to 
disprove  the  seisin  of  Anne  Cowlishaw,  which  documents  are  in  his 
exclusive  possession,  and  the  contents  of  which  were  unknown  to 
the  defendant,  the  latter  would  have  been  entirely  misled,  as  he 
would  only  come  prepared  to  prove  the  grant.  The  plaintiff  could 
only  traverse  one  of  the  facts  alleged  in  the  plea.  If  he  attempted 
to  put  more  than  one  in  issue,  the  replication  would  have  amounted 
to  the  general  replication  of  de  injurid,  which  is  clearly  bad  in  such 
a  case.  Crogate's  Case,  8  Eep.  66  ;  Cockerell  v.  Armstrong,  Willes, 
99.  It  was  not  competent  for  the  plaintiff  to  give  any  evidence  to 
negative  any  part  of  the  plea,  which  was  admitted  by  the  traverse 
being  taken  on  another  allegation.  This  would  give  him  the 
advantage  of  the  general  replication  of  de  injurid.  The  plaintiff 
had  his  choice  which  allegation  to  traverse  ;  and  if  he  is  allowed, 
on  a  traverse  of  one  allegation,  to  dispute  another,  there  is  no  reason 
why  he  may  not  dispute  the  whole  plea,  which  he  clearly  cannot 
do,  as  de  injurid  cannot  be  replied,  when  an  easement  or  other 
interest  in  the  land  is  claimed.  The  present  is  a  strong  case  to 
show  the  good  policy  and  utility  of  the  rule  of  law  contended  for 
by  the  defendant,  for  the  real  merits  arise  on  the  allegation  of  the 
seisin  in  Anne  Cowlishaw,  equally  as  if  it  had  been  laid  in  any 
other  person ;  and  if  the  allegation  of  seisin  in  Anne  Cowlishaw 
had  been  traversed,  the  only  effect  would  have  been  to  have  caused 
the  defendant  to  amend,  by  adding  pleas,  laying  the  seisin  in  differ- 
ent persons ;  and  the  same  evidence  which  was  produced  at  the 
trial  to  prove  the  grant  by  Anne  Cowlishaw  would  equally  have 
proved  a  grant  alleged  to  have  been  made  by  any  other  person  who 
might  appear  to  have  been  the  owner  of  the  fee.     There  is  no  such 

1  The  arguments,  as  to  the  right  of  A.  Cowlishaw  to  grant,  are  omitted,  as  the 
judgment  of  the  court  proceeded  entirely  on  the  question  of  the  admissibility  of  the 
evidence,  on  the  issue  taken  upon  the  grant. 


PLEAS    IN   BAR.  451 

principle  as  that  which  was  contended  for  by  the  other  side,  that  a 
party  may  be  estopped  by  an  admission  on  the  record  for  one  pur- 
pose, and  not  for  another,  in  the  same  cause.  In  the  present  case, 
the  seisin  of  Anne  Cowlishaw  was  admitted  on  the  record,  and  the 
plaintiff  was  estopped  from  giving  any  evidence  in  contravention 
of  that  admission.  The  evidence,  therefore,  was  clearly  inadmis- 
sible, and  the  defendant  is  entitled  to  retain  his  verdict. 

Balguy  and  Clinton,  contra.  —  The  evidence  in  question  was 
admissible,  not  to  contradict  the  allegation  on  the  record,  but  to 
negative  the  fact  of  Anne  Cowlishaw  having  made  the  grant.  The 
user  is  only  presumptive  evidence-  of  the  grant ;  and  it  was  compe- 
tent for  the  plaintiff  to  show  that  Anne  Cowlishaw  was  not  seised 
in  fee,  and  could  not,  therefore,  in  point  of  law,  have  made  such  a 
grant.  She  ought  not  to  be  presumed  to  have  done  an  act  contrary 
to  law.  The  question  for  the  jury  was  purely  one  of  fact,  whether 
the  deed  was  or  was  not  made.  There  is  a  distinction  between 
presumptions  of  law  and  of  fact.  The  latter  may  always  be  rebutted 
by  contrary  evidence.  The  question,  whether  a  particular  deed 
ever  had  existence,  in  cases  like  the  present,  is  of  the  latter  class. 
The  principles  on  this  branch  of  the  law  are  thus  stated  by  a  learned 
author :  ^  "  The  presumption  of  right  in  such  cases  is  not  conclu- 
sive ;  in  other  words,  it  is  not  an  inference  of  mere  law,  to  be  made 
by  the  courts ;  yet  it  is  an  inference  which  the  courts  advise  juries 
to  make  whenever  the  presumption  stands  unrebutted  by  contrary 
evidence.  Such  evidence  in  theory  is  mere  presumptive  evidence." 
The  same  learned  writer,^  citing  Barker  v.  Eichardson,  4  B.  &  A. 
579,^  lays  down  in  another  passage  the  law  on  this  subject  in  the 
following  terms  :  "  The  technical  presumption  necessarily  assumes 
that  it  was  practicable  to  transfer  the  right  by  means  of  a  grant  or 
other  conveyance ;  hence  the  presumption  does  not  operate  where 
such  a  grant  could  not,  from  the  nature  of  the  case,  have  been 
made."  In  the  present  case  Anne  Cowlishaw  could  not  legally  have 
made  the  grant  in  question ;  and  even  if  the  evidence  had  been  all 
one  way,  as  to  the  user  of  the  right  of  road,  the  presumption  of  the 
grant  would  have  been  rebutted  by  the  evidence  which  was  offered 
of  the  state  of  the  title  at  the  time  when  the  alleged  grant  was 
supposed  to  have  been  made.  The  learned  judge,  therefore,  ought 
to  have  directed  the  jury  to  find  a  verdict  for  the  plaintiff'  on  the 
second  plea ;  and,  at  all  events,  he  ought  not  to  have  told  the  jury 
that  they  might  assume,  for  the  purposes  of  their  verdict,  that  Anne 
Cowlishaw  had  the  legal  right  to  make  the  grant.     That  direction 

1  Starkie's  Evid.  1214.  2  ibid.  1218. 

3  E.  C.  L.  R.  Vol.  VI. 


452  CASES    ON    COMMON-LAW    PLEADING. 

was  calculated  to  lessen  the  effect  of  the  e\idence  on  the  minds  of 
the  jury,  and  entitles  the  plaintiff  at  least  to  a  new  trial. 

Cur.  adv.  vult. 

Vaughan,  B.  This  was  an  action  of  trespass  quare  clausum 
f regit,  in  which  the  defendant  pleaded  no  general  issue,  but  three 
special  pleas  :  first,  a  prescriptive  right  of  way  ;  secondly,  that  Anne 
Cowlishaw,  being  seised  in  fee,  granted  a  right  of  way  by  lost  deed ; 
and,  thirdly,  a  common  highway.  The  first  and  third  pleas  were 
properly  negatived  on  the  evidence  which  was  given  at  the  trial, 
and  the  only  question  therefore  'Was  upon  the  second  plea,  upon 
which  the  jury  found  a  verdict  for  the  defendant.  The  present  is  an 
application,  on  the  part  of  the  plaintiff,  to  enter  a  verdict  upon  the 
issue  on  the  second  plea,  or  for  a  new  trial :  in  the  consideration  of 
which  question,  it  becomes  material  to  refer  to  the  second  plea,  and 
the  issue  upon  that  plea.  The  second  plea  states,  that  Anne  Cow- 
lishaw was  seised  in  fee,  and,  being  so  seised,  granted  the  way  in 
question  by  lost  grant;  and  the  replication  to  that  plea  is,  simply, 
that  she  did  not  grant  modo  et  forma.  It  was  competent  for  the 
plaintiff  to  traverse  either  the  seisin  of  Anne  Cowlishaw  or  the  grant 
by  her.  The  former  is  [not?]  traversed,  and  therefore  it  seems  to  me 
and  to  the  court,  that  it  must  be  taken  against  the  plaintiff'  conclu- 
sively that  she  was  seised  in  fee.  But  it  was  contended  for  the  plain- 
tiff, that  the  evidence  was  admissible,  not  to  disprove  the  seisin  of 
Anne  Cowlishaw,  but,  as  an  ingredient,  to  rebut  the  existence  of  the 
grant,  which  was  a  mere  presumption  of  fact ;  because,  if  she  had  no 
authority  to  grant,  it  was  unlikely,  under  such  circumstances,  that 
she  should  have  made  the  grant.  It  is  a  satisfactory  answer  to  this 
argument,  that  the  plaintiff  is  estopped  by  the  state  of  the  pleadings, 
and  therefore  cannot  be  received  to  contradict  that  which  is  admitted 
upon  the  record.  Under  these  circumstances,  evidence  to  negative 
the  seisin  of  Anne  Cowlishaw  was  not  properly  receivable,  and 
therefore  the  learned  judge  was  perfectly  correct  in  directing  the 
jury  to  presume,  for  the  purposes  of  their  verdict,  that  Anne  Cow- 
lishaw was  seised  in  fee.  We  therefore  think,  that  the  rule  to  enter 
a  verdict  for  the  plaintiff  should  be  discharged ;  but,  as  there  seems 
to  have  been  conflicting  evidence  in  this  case,  and  as  the  verdict 
might  affect  the  inheritance,  the  plaintiff  may  have  a  new  trial,  upon 
payment  of  costs,  the  defendant  being  at  liberty  to  amend  his 
pleadings  as  he  shall  be  advised. 

Eule  accordingly. 


PLEAS   IN   BAR.  y  453 


J.  DODD   V.   KYFFIN. 
In  the  King's  Bench.     1797. 
Reported  7  Term  Reports,  354. 
lu  trespass  the  defendant  may,  under  the  general  issue,  give  evidence  of  title. 

Trespass  for  breaking  and  entering  the  plaintiffs  close  called  tlie. 
Chapeltield,  on  the  30th  March,  1793.  Plea,  the  general  issue.  At 
the  trial  before  the  Chief  Justice  of  Chester  the  plaintiff  gave  evi- 
dence of  his  being  in  possession  of  the  close  at  the  time  of  the  tres- 
pass alleged,  by  proof  of  different  acts  of  husbandry  exercised  by 
him  therein  down  to  that  period  and  afterwards.  It  appeared  that 
the  close  belonged  to  a  chapel,  of  which  Mr.  Evans  had  been 
minister  for  some  years,  till  his  death  in  December,  1792,  during 
which  time  it  was  held  under  him  by  one  G-.  Dodd.  Before  the 
day  of  the  alleged  trespass,  Mr.  Price  had  succeeded  as  minister  of 
the  chapel;  and  the  defendant  offered  to  call  a  witness  Ho  prove 
that  previous  to  that  day  Price  had  verbally  demised  the  close  to 
him  the  defendant.  The  Chief  Justice  said,  he  would  receive  any 
evidence  to  show  the  actual  possession  out  of  the  plaintiff  at  the 
time  of  the  supposed  trespass,  but  he  thought  that  under  the  plea 
of  not  guilty  he  could  not  receive  any  evidence  of  title  or  of  the 
right  of  possession  being  in  the  defendant ;  nothing  being  in  issue 
but  the  fact  of  the  trespass  on  the  actual  possession  of  the  plaintiff. 
Some  evidence  was  afterwards  given  to  show  a  possession  in  Price 
at  the  time  ;  and  the  Chief  Justice  left  the  whole  to  the  jury  to 
find  their  verdict  according  as  they  believed  that  the  possession  was 
in  or  out  of  the  plaintiff  at  the  time ;  and  they  found  a  verdict  for 
the  plaintiff. 

Mauley  in  the  last  term  obtained  a  rule  to  show  cause  why  tlie 
verdict  should  not  be  set  aside,  because  the  evidence  offered  had 
been  rejected :  and  also  because,  admitting  the  possession  to  be 
dubious,  trespass  would  not  lie. 

Leycester  and  Hinchliff'e  now  showed  cause  against  the  rule,  and 
contended  that  title  could  not  be  given  in  evidence  on  the  general 
issue  in  trespass,  but  if  meant  to  be  insisted  on  it  ought  to  have 
been  pleaded.  They  admitted  that  a  lease  from  a  third  person 
might  be  given  in  evidence,  to  disprove  the  fact  of  the  plaintiff's 
possession  ;  but  the  evidence  in  question  was  not  offered  on  that 
ground.     They  mentioned  Dove  v.  Smith,  6  Mod.  153,  wdiere  Holt, 

1  The  same  witness  had  before  proved  facts  which  rendered  the  question  of  posses- 
sion doubtful. 


454  CASES    ON    COMMON-LAW   PLEADING. 

Ch.  J.,  said,  "  upon  not  guilty  the  defendant  could  not  give  any 
matter  of  right  in  evidence."  Bull.  Ni.  Pri.  90.  {vide  Tri.  per  Pais, 
526),  and  Bartholomew  v.  Ireland,  Andr.  108,  in  which  latter  they 
observed  there  was  a  plea  of  liberum  tenementuvi,  and  consequently 
what  was  said  as  to  giving  such  evidence  on  the  general  issue  was 
extrajudicial.     But 

The  court  were  clearly  of  opinion  that  the  defendant  ought  to 
have  been  permitted  to  give  evidence  of  title  and  of  right  to  posses- 
sion under  the  general  issue ;  and  therefore  they  made  the 

Eule  absolute. 

PICKERING   V.   RUDD.  y/ 

At  Nisi  Prius,  Lord  Ellenborough,  C.  J.     1815. 
Reported  4  Campbell,  219. 
Or  contend  that  the  plaintiff  has  misconceived  his  action. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  and 
placing  a  board  over  it,  and  cutting  a  tree,  etc. 

Plea,  not  guilty  as  to  the  clausum  /regit ;  and  as  to  cutting  the 
tree,  a  justification  that  it  was  wrongfully  growing  against  the  wall 
of  the  defendant,  and  that  he  therefore  removed  it,  as  he  law^fully 
might.     New  assignment  of  excess,  and  issue  thereupon. 

The  defendant's  house  adjoins  to  the  plaintiff's  garden,  the  locus 
in  quo  ;  and  to  prove  the  breaking  and  entering  of  this,  the  evidence 
was,  that  the  defendant  had  nailed  upon  his  house  a  board,  which 
projected  several  inches  from  the  wall,  and  so  far  overhung  the 
garden. 

Garrow,  A.  G.,  and  Pdchardson,  for  the  plaintiff,  contended  that 
this  was  a  trespass  for  which  he  had  a  right  to  maintain  the  present 
action.  Cujus  est  solum,  ejus  est  usque  ad  caelum.  The  space  over 
the  soil  of  the  garden  is  the  plaintiff's,  like  the  minerals  below,  and 
an  invasion  of  either  is,  in  contemplation  of  law,  a  breaking  of  his 
close.  A  mere  temporary  projection  of  a  body  through  the  air 
across  the  garden  may  not  be  actionable ;  but  where  a  board  is 
caused  permanently  to  overhang  the  garden,  this  is  a  clear  invasion 
of  the  plaintiff's  possession.  If  this  be  not  a  trespass,  it  is  easy  to 
conceive  that  the  whole  garden  may  be  overshadowed  and  excluded 
from  the  sun  and  air  without  a  trespass  being  committed. 
.  Lord  Ellenborough.  I  do  not  think  it  is  a  trespass  to  interfere 
with  the  column  of  air  superincumbent  on  the  close.  I  once  had 
occasion  to  rule  upon  the  circuit,  tliat  a  man  who,  from  the  outside 
of  a  field,  discharged  a  gun  into  it,  so  as  that  the  shot  must  have 


PLEAS   IN   BAR.  455 

struck  the  soil,  was  guilty  of  breaking  and  entering  it.  A  very 
learned  judge  who  went  the  circuit  with  me  at  first  doubted  the 
decision,  but  I  believe  he  afterwards  approved  of  it,  and  that  it  met 
with  the  general  concurrence  of  those  to  whom  it  was  mentioned. 
But  I  am  by  no  means  prepared  to  say,  that  firing  across  a  field 
in  vacuo,  no  part  of  the  contents  touching  it,  amounts  to  a  clausujii 
f regit.  Nay,  if  this  board  overhanging  the  plaintiff's  garden  be  a 
trespass,  it  would  follow  that  an  aeronaut  is  liable  to  an  action  of 
trespass  quare  clausum  f regit  at  the  suit  of  the  occupier  of  every 
field  over  which  his  balloon  passes  in  the  course  of  his  voyage. 
Whether  the  action  may  be  maintained  cannot  depend  upon  the 
length  of  time  for  which  the  superincumbent  air  is  invaded.  If 
any  damage  arises  from  the  object  which  overhangs  the  close,  the 
remedy  is  by  an  action  on  the  case.  Here  the  verdict  depends  upon 
the  new  assicfument  of  excess  in  cuttings  down  the  tree. 

The  jury  found  for  the  defendant. 

Garrow,  A.  G.,  and  Eichardson,  for  the  plaintiff. 

Jervis  and  Abbott,  for  the  defendant. 

[Attorneys,  Caley  and  Presland.] 

(d)     To  Plaintiff's  Person. 

RIGG'S   CASE. 

At  Nisi  Prius,  before  Crawley,  J.     August,  1633. 

■Rhported  Clayton,  24,  placitum  41. 

The  extent  stated  to  which  justification  of  a  battery  is  admissible  under 
"not  guilty." 

Eigg  brought  an  action  of  battery,  and  the  case  was,  the  plaintiff 
was  a  boy  and  did  press  to  come  into  a  cockpit  to  see  the  game,  and 
the  master  of  the  pit,  endeavoring  to  put  him  forth,  he  resisted 
him ;  the  master  thereupon  pulled  him  by  the  ear  so  that  it  bled, 
and  the  boy  by  his  guardian  sues  this  action,  and  the  master 
pleaded  not  guilty ;  for  this  it  was  against  him,  but  by  Davenport, 
Judge,  some  opinion  was  that  by  good  pleading  in  this  case  the 
master  of  the  pit  might  have  justified  the  act  well  enough,  but 
could  not  plead  not  guilty. 


456  CASES   ON   COMMON-LAW   PLEADING. 

GIBBONS   V.  PEPPER.  y/ 

In  the  King's  Bench.     1695. 
Reported  1  Lord  Raymond,  38. 

Trespass,  assault  and  battery.  The  defendant  pleads,  that  he 
rode  upqin  a  horse  in  the  king's  highway,  and  that  his  horse  being 
affriglited  ran  away  with  him,  so  that  he  could  not  stop  the  horse ; 
that  there  were  several  persons  standing  in  the  way,  among  whom 
the  plaintiff  stood ;  and  that  he  called  to  them  to  take  care,  but 
that,  notwithstanding,  the  plaintiff  did  not  go  out  of  the  way,  but 
continued  there ;  so  that  the  defendant's  horse  rode  over  the  plain- 
tiff against  the  will  of  the  defendant ;  quce  est  eadem  transgressio, 
etc.  The  plaintiff'  demurred.  And  Serjeant  Darnall  for  the  defend- 
ant argued,  that  if  the  defendant  in  his  justification  shows  that 
the  accident  was  inevitable,  and  that  the  negligence  of  the  defend- 
ant did  not  cause  it,  judgment  shall  be  given  for  him.  To  prove 
which  he  cited  Hobart,  344;  Weaver  v.  Ward,  Mo.  864,  pi.  1192; 
2  Ptoll.  Abr.  548;  1  Brownl.  prec.  188. 

Northey  for  the  plaintiff  said,  that  in  all  these  cases  the  defendant 
confessed  a  battery  which  he  afterwards  justified  ;  but  in  this  case 
he  justified  a  battery,  which  is  no  battery.  Of  this  opinion  was 
the  whole  court ;  for  if  I  ride  upon  a  horse,  and  J.  S.  whips  the 
horse,  so  that  he  runs  away  with  me,  and  runs  over  any  other 
person,  he  who  whipped  the  horse  is  guilty  of  the  battery,  and  not 
me.  But  if  I  by  spurring  was  the  cause  of  such  accident,  then  I 
am  guilty.  In  the  same  manner,  if  A.  takes  the  hand  of  B.  and 
with  it  strikes  C,  A.  is  the  trespasser,  and  not  B.  And,  per 
curiam,  the  defendant  might  have  given  this  justification  in  evi- 
dence, upon  the  general  issue  pleaded.  And  therefore  judgment 
was  given  for  the  plaintiff". 

CASE. 

"  In  actions  upon  the  case,  the  defendant,  upon  the  general  issue 
of  not  guilty,  may  not  only  put  the  plaintiff  upon  proof  of  the 
whole  charge  contained  in  the  declaration,  but  may  offer  any  mat- 
ter in  excuse  or  justification  of  it;  or  he  may  set  up  a  former  re- 
covery, release,  or  satisfaction :  For  an  action  on  the  case  is  founded 
upon  the  mere  justice  and  conscience  of  the  plaintiffs  case,  and  is 
in  the  nature  of  a  bill  in  equity,  and  in  effect  is  so  ;  and  therefore 
such  a  former  recovery,  release,  or  satisfaction  need  not  be  pleaded, 


PLEAS    IN    BAK.  457 

but  may  be  given  in  evidence :  since,  whatever  will,  in  equity  and 
conscience,  according  to  the  circumstances  of  the  case,  bar  the 
plaintiff's  recovery,  may  in  this  action  be  given  in  evidence  by  the 
defendant ;  because  the  plaintiff  must  recover  upon  the  justice  and 
conscience  of  his  case,  and  upon  that  only."     Tidd,  Practice,  650. 


UNDERWOOD    v.  PARKS. 

In  the  Kixg's  Bench.     1743. 

Reported  2  Strange,  1200. 


y 


In  an  action  for  words,  the  defendant  pleaded  not  guilty,  and 
offered  to  prove  the  words  to  be  true,  in  mitigation  of  damages : 
which  the  Chief  Justice  refused  to  permit,  saying  that  at  a  meet- 
ing of  all  the  Judges  upon  a  case  that  arose  in  the  Common  Pleas, 
a  large  majority  of  them  had  determined,  not  to  allow  it  for  the 
future,  but  that  it  should  be  pleaded,  whereby  the  plaintiff  might 
be  prepared  to  defend  himself,  as  well  as  to  prove  the  speaking  of 
the  words.  That  this  was  now  a  general  rule  amongst  them  all, 
which  no  judge  would  think  himself  at  liberty  to  depart  from,  and 
that  it  extended  to  all  sorts  of  words,  and  not  barely  to  such  as 
imported  a  charge  of  felony. 

BROOK  V.  SIR  HENRY  MONTAGUE,   RECORDER  OF 

LONDON. 

In  the  King's  Bench.     1605. 

Reported  Croke's  James,  90. 

Action  for  words;  for  that  the  defendant  at  such  a  place  in  Surrey 
spake  these  words  of  the  plaintiff:  "  He  was  arraigned  and  con- 
victed of  felony,  etc."  The  defendant  pleads,  that  the  plaintiff  at 
another  time  brought  false  imprisonment  against  J.  S.,  one  of  the 
Serjeants  of  London,  who  justified  by  warrant  from  Sir  Nicholas 
Mosely,  Mayor  of  London,  for  arresting  him  to  find  sureties  for  the 
good  behavior ;  and  they  were  thereupon  at  issue ;  and  found 
against  the  plaintiff,  who  brought  an  attaint :  and  the  defendant 
being  consiHarius  et  peritus  in  lege,  was  retained  to  be  of  counsel 
with  the  petty  jury ;  and  in  evidence  at  the  trial  in  London  spake 
those  words  in  the  declaration ;  and  so  justifies.  Yelverton  and 
Coke,  Attorney-General,  were  of  counsel  for  the  defendant. 

The  court  resolved  that  the  justification  was  good  ;  for  a  counsel- 
lor in  law  retained  hath  a  privilege  to  enforce  anything  which  is 


458  CASES   ON   COMMOX-LAW   PLEADING. 

informed  him  by  his  client,  and  to  give  it  in  evidence,  it  being 
pertinent  to  the  matter  in  question,  and  not  to  examine  whether  it 
be  true  or  false  ;  but  it  is  at  the  peril  of  him  who  informs  it :  for  a 
counsellor  is  at  his  peril  to  give  in  evidence  that  which  his  client 
informs  him,  being  pertinent  to  the  matter  in  question  ;  otherwise 
action  on  the  case  lies  against  him  by  his  client,  as  Popham  said. 
But  matter  not  pertinent  to  the  issue,  or  the  matter  in  question,  he 
need  not  to  deliver ;  for  he  is  to  discern  in  his  discretion  what  he  is 
to  deliver,  and  what  not ;  and  although  it  be  false,  he  is  excusable, 
being  pertinent  to  the  matter :  but  if  he  give  in  evidence  anything 
not  material  to  the  issue  which  is  scandalous,  he  ought  to  aver  it 
to  be  true,  otherwise  he  is  punishable  ;  for  it  shall  be  intended  as 
spoken  maliciously  and  without  cause ;  which  is  good  ground  for 
an  action.  So  if  a  counsellor  object  matter  against  a  witness  which  is 
slanderous,  if  there  be  cause  to  discredit  his  testimony,  and  it  be 
pertinent  to  the  matter  in  question,  it  is  justifiable  what  he  delivers 
by  information,  although  it  be  false.  So  here  it  is  material  evidence 
to  prove  him  a  person  fit  to  be  bound  to  his  good  behavior,  and  in 
maintenance  of  the  first  verdict ;  therefore  his  justification  good. 

"  Coke  cited  a  case,  where  Parson  Prick  in  a  sermon  recited  a 
story  out  of  Fox's  Martyrology,  that  one  Greenwood,  being  a 
perjured  person,  and  a  great  persecutor  had  great  plagues  inflicted 
upon  him,  and  was  killed  by  the  hand  of  God ;  whereas  in  truth  he 
was  never  so  plagued,  and  was  himself  present  at  that  sermon ;  and 
he  thereupon  brought  his  action  upon  the  case,  for  calling  him  a 
perjured  person;  and  the  defendant  pleaded  not  gxiilty.  And  this 
matter  being  disclosed  upon  the  evidence,  Wray,  Chief  Justice, 
delivered  the  law  to  the  jury,  that  it  being  delivered  but  as  a  story, 
and  not  with  any  malice  or  intention  to  slander  any,  he  was  not 
guilty  of  the  words  maliciously,  and  so  was  found  not  guilty."  Y. 
B.  14  Hen.  VI.  pi.  14 ;  Y.  B.  20  Hen.  VI.  pi.  34. 

And  Popham  affirmed  it  to  be  good  law,  v/hen  he  delivers  mat- 
ter after  his  occasion  as  matter  of  story,  and  not  with  any  intent 
to  slander  any.  —  Wherefore,  for  these  reasons,  it  was  adjudged  for 
the  defendant. 

"  [In  actions  on  the  case  ]  it  was  always  necessary  to  plead  the 
statute  of  limitations  specially."     Chitty,  Pleading,  Vol.  I.  p.  *526. 


PLEAS   IN   BAR.  459 


y 


LILLIE   V.  PRICE. 
In  the  King's  Bexch.     1836. 
Reported  5  Adolphus  &  Ellis,  645. 
Privileged  communications  need  not  be  specially  pleaded. 

Declaration  for  libel  contained  in  a  letter.  Plea,  not  guilty- 
On  the  trial  before  Lord  Denman,  C.  J.,  at  the  sittings  in  Middlesex 
after  last  Trinity  Term,  the  defence  was  that  the  alleged  libel  was 
a  privileged  communication.  The  defendant's  counsel  objected 
that  this  answer  could  not  be  given  under  the  plea  of  not  guilty. 
The  Lord  Chief  Justice  thought  otherwise,  and  left  the  whole  case 
to  the  jury,  who  found  for  the  defendant. 

Sir  W.  W.  Follett  in  this  term  ^  moved  for  a  rule  to  show  cause 
why  a  new  trial  should  not  be  had,  on  the  ground  of  misdirection. 
It  has  never  yet  been  decided  that  m  an  action  for  libel  the  de- 
fence of  privileged  communication  may  be  set  up,  under  a  plea  of 
the  general  issue.  The  point  was  brought  before  the  Court  of 
Common  Pleas,  but  not  decided,  in  Smith  v.  Thomas,  2  New  Ca. 
372.  In  the  rules,  Hil.  4  Will.  IV.,  Pleadings  in  Particular  Actions, 
IV.  1,  5  B.  &  Ad.  ix,  it  is  said  that  the  plea  of  not  guilty,  in  an 
action  for  slander  of  the  plaintiff  in  his  otitice,  profession,  or  trade,^ 
"  will  operate  to  the  same  extent  precisely  as  at  present,  in  denial 
of  speaking  the  words,  of  speaking  them  maliciously,  and  in  the 
sense  imputed,  and  with  reference  to  the  plaintiffs  office,  profes- 
sion, or  trade  ;  but  it  will  not  operate  as  a  denial  of  the  fact  of  the 
plaintiff  holding  the  office,  or  being  of  the  profession  or  trade 
alleged."  But  it  cannot  be  inferred  from  this  that  the  same  plea 
will  let  in  the  defence  of  privileged  communication,  which  involves 
matter  not  properly  determinable  by  a  jury.  The  mere  plea  of  not 
guilty  does  not  give  the  plaintiff  any  notice  of  such  a  defence.  In 
Stancliffe  v.  Hard  wick,  2  Cro.,  M.  &  R.  1 ;  s.  c.  5  Tyr.  551.  Where 
a  question  of  the  same  kind  arose  as  to  the  admissibility  of  evi- 
dence, in  an  action  of  trover,  to  justify  the  conversion,  it  was  held 
that,  to  let  in  such  a  defence,  the  plea  ought  to  have  been  special. 
Cases  bearing  some  analogy  to  the  present  have  arisen  in  actions  of 
assumpsit,  as  Barnett  v.  Glossop,  1  New  Ca.  633,  and  where  the 
defence  was  the  want  of  a  written  contract  to  satisfy  the  statute  of 
frauds,  it  has  been  held,  since  the  New  Rules,  that  that  must  be 

1  November  5.    Before  Lord  Penman,  C.  J.,  Patteson,  Williams,  and  Coleri<]ge,  JJ. 

2  The  slander  in  the  present  case  was  not  charged  as  affecting  the  plaintiff  in  an/ 
particular  capacity. 


4G0  CASES   ON   COMMON-LAW   PLEADING. 

specially  pleaded.^  [Lord  Denman,  C.  J.  In  the  instance  of  an 
action  of  slander,  mentioned  in  the  rule  of  pleading  just  cited,  it  is 
said  that  the  plea  of  not  guilty  will  operate  as  before,  in  denial  of 
having  spoken  the  words  maliciously.]  Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  now  said:  We  have  consulted  the  other 
judges  on  this  point,  and  are  of  opinion  that  the  defence  of  privi- 
leged communication,  as  it  goes  to  the  very  root  of  the  matter  of 
complaint,  need  not  be  specially  pleaded.  Eule  refused.^ 

Section  VI. 

DETINUE. 

"  In  detinue  the  defendant  pleadeth  no7i  detinet,  he  cannot  give 
in  evidence,  that  the  goods  were  pawned  to  him  for  money,  and 
that  it  is  not  paid,  but  must  pleade  it;  but  he  may  give  in  evidence 
a  gift  from  the  plaintife,  for  that  proveth  he  detaineth  not  the 
plaintife's  goods."     Coke  upon  Littleton,  283  a. 

RICHARDS    V.   FRANKUM.        J^ 

In  the  Exchequer.     18i0. 
Reported  6  Meesok  &  Welsby,  420. 
The  only  issue  on  non  detinet  is  upon  the  fact  of  the  detainer. 

This  was  an  action  of  detinue  for  a  promissory  note.  '  The 
defendant  pleaded,  first,  non  detinet ;  secondly,  that  the  plaintiff 
was  not  possessed  of  the  note  ;  thirdly,  that  before  the  commence- 
ment of  the  suit,  the  plaintiff,  for  a  good  and  valuable  considera- 
tion, assigned  and  delivered  the  said  promissory  note  to  one  John 
Granger,  to  be  by  him  held  as  and  for  his  own  note  ;  and  that  the 
said  John  Granger,  before  the  commencement  of  this  suit,  delivered 
the  said  note  to  the  defendant,  to  be  by  him  held  for  and  on  the 
behalf  and  for  the  use  and  benefit  of  the  said  John  Granger ;  and 
that  the  defendant,  as  the  servant  and  by  the  command  of  the 
said  John  Granger,  detained  and  still  detains  the  said  promissory 
note,  as  he  lawfully  might  for  the  causes  aforesaid. 

The  replication  traversed  the  assignment  and  delivery  of  the 

1  But  see  Johnson  v.  Dodgson,  2  M.  &  W.  653. 

2  See  Cotton  v.  Browne,  3  A.  &  E.  312,  where  it  was  held  that  prohable  cause 
ought  not  to  be  specially  pleaded  to  a  declaration  (since  the  new  rules)  for  maliciously 
indicting.  See  also  Delegal  v.  Highley,  3  New  Ca.  950;  and  Drummoud  v.  Pigon,  2 
New  Ca.  114,  there  cited. 


PLEAS   IN    BAR.  461 

note  by  the  plaintiff  to  Granger,  and  the  delivery  by  him  to  the 
defendant. 

At  the  trial  before  Gurney,  B.,  at  the  last  assizes  for  the  county 
of  Oxford;  the  jury  found  a  verdict  for  the  defendant  on  the  second 
and  third  issues  ;  the  learned  judge  giving  the  defendant  leave  to 
move  to  enter  a  verdict  on  the  issue  on  the  plea  of  non  ddinct  also, 
if  the  court  should  be  of  opinion  that  the  matters  of  defence  so 
found  in  his  favor  were  evidence  in  support  of  that  issue. 

Ludlow,  Serjt.,  now  moved  accordingly.  The  jury,  by  finding  on 
the  second  and  third  issues  for  the  defendant,  have  found  that  the 
promissory  note  was  not  the  property  of  the  plaintiff,  and  so  estab- 
lished the  plea  of  non  detinet,  which  puts  in  issue  the  wrongful 
holding  and  detaining  of  the  note  by  the  defendant.  It  is  evident 
from  the  use  of  the  words,  "  which  he  unjustly  detains,"  in  the 
original  writ  and  declaration,  that  the  unjust  detention  is  the 
gravamen  of  the  complaint,  and  that  is  therefore  put  in  issue  by 
the  plea  of  non  detinet,  notwithstanding  the  New  Eules.  What- 
ever may  be  the  effect  of  the  New  Rules  as  to  pleading  specially 
matter  of  excuse,  the  unjust  detention  is  the  gravamen  of  the  charge 
in  the  declaration  ;  and  as  that  is  a  material  allegation  in  it,  and 
is  traversed  by  the  plea,  and  the  finding  of  the  jury  on  the  other 
issues  establishes  that  there  was  no  unjust  detention,  the  verdict 
ought  therefore  to  be  entered  for  the  defendant. 

Lord  Abinger,  C.  B.  There  is  no  ground  whatever  for  this  mo- 
tion. It  is  true  that  a  party  who  brings  an  action  of  detinue  brings 
it  for  the  unjust  detention  of  his  property  ;  but  where  the  detention 
is  justified,  the  matter  must  be  set  out  on  the  record.  The  only 
issue  on  non  detinet  is  upon  the  fact  of  the  detainer.  If  the  party 
has  a  lawful  excuse  for  the  detainer,  he  must  plead  it. 

Parke,  B.  There  is  no  ground  for  this  application.  Under  the 
plea  of  non  detinet  a  defendant  might,  at  common  law,  prove  that 
the  goods  were  not  the  property  of  the  plaintiff;  but  if  he  had  a 
lawful  excuse  for  the  detention,  as  if  the  goods  were  pawned  or 
pledged  to  him  for  money  which  was  not  repaid,  he  was  bound  to 
plead  it.  Co.  Lit.  283  a.  Lord  Coke  there  says,  "  In  detinue,  the 
defendant  pleadeth '^lon  detinet;  he  cannot  give  in  evidence  that 
the  goods  were  pawned  to  him  for  money,  and  that  he  is  not  paid, 
but  he  must  plead  it ;  but  he  may  give  in  evidence  a  gift  from  the 
plaintiff,  for  that  proveth  that  he  detaineth  not  the  plaintiff's 
goods."  But  it  is  perfectly  clear  that,  since  the  New  Rules,  the 
defendant  cannot  give  in  evidence,  under  the  plea  of  non  detinet, 
that  the  goods  were  not  the  property  of  the  plaintiff:  so  that,  in 
any  view  of  the  case,  the  matters  proved  in  support  of  the  second 


462  CASES   ON   COMMON-LAW   PLEADING. 

and  third  ple^  were  not  evidence  under  the  first.  If  the  object  be 
to  show  that  the  chattel  is  not  the  property  of  the  plaintiff,  that 
cannot  be  done  under  such  a  plea  since  the  New  Eules.  If  the 
object  be  to  show  that  the  detention  was  lawful,  and  the  party  had 
a  good  excuse  for  detaining  the  property,  then,  according  to  the 
authority  of  Lord  Coke,  such  a  defence  ought  to  be  pleaded,  even 
at  common  law.  Under  the  plea  of  non  detinet,  the  fact  of  deten- 
tion is  alone  in  issue. 

Alderson,  B.  In  an  action  of  trover,  the  plea  of  not  guilty  puts 
in  issue  the  mere  fact  of  the  conversion,  and  so  under  the  issue  of 
non  detinet  the  fact  of  the  detention  is  alone  in  issue. 

Eolfe,  B.,  concurred.  "  Rule  refused. 


LANE  V.  TEWSON. 
In  the  Queen's  Bench.     1841. 
Repokted  1  Gale  &  Davisox,  584. 

Detinue  of  goods.  Plea,  that  the  said  goods,  etc.,  were  not  the 
goods  of  the  plaintiff. 

At  the  trial  before  Parke,  B.,  at  the  last  assizes  for  the  county  of 
Lincoln,  the  defendant  contended  that  he  had  a  lien  upon  the  sub- 
ject of  the  action  for  his  charges  as  an  auctioneer.  It  was  objected, 
on  the  part  of  the  plaintiff,  that  this  defence  was  not  admissible 
under  the  plea.  The  learned  Baron  reserved  leave  to  the  plaintiff 
to  move  to  enter  a  verdict  for  him  on  this  objection,  if  the  opinion 
of  the  jury  should  be  adverse  upon  the  question,  which  he  left  to 
them,  of  the  fact  of  the  lien.  The  jury  having  found  a  verdict  for 
the  defendant, 

Balguy  1  now  moved  to  enter  a  verdict  for  the  plaintiff,  pursuant 
to  leave  reserved.  He  cited  Richards  v.  Prankum  as  an  authority 
that  in  detinue  a  lien  must  be  specially  pleaded. 

Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  now  delivered  judgment.  The  question  in 
this  case  was,  whether  in  detinue,  under  a  plea  denying  that  the 
goods  were  the  plaintiff's,  a  lien  could  be  set  up.  We  think,  that 
the  learned  judge  ruled  rightly  that  it  might.  A  similar  point  has 
been  already  decided  in  an  action  of  trover. 

Rule  refused. 

1  On  Friday,  November  5,  before  Lord  Denman,  C.  J.,  Williams,  Coleridge,  and 
Wightman,  JJ. 


PLEAS   IN   BAE.  /  463 

PHILIPS   V.   ROBINSON. 

In  the  Common  Pleas.     1827. 

Reportkd  4  Bingham,  106. 

Want  of  property  in  the  plaintiff  may  be  given  in  evidence  under  non 
detinet. 

Detinue  for  deeds.  The  declaration  alleged  that  the  plaintiff  de- 
livered, and  caused  to  be  delivered,  to  the  defendant  certain  deeds 
(describing  them)  of  the  said  plaintiff,  of  great  value,  to  wit,  of  the 
value  of  £1000,  to  be  re-delivered  by  the  defendant  to  the  plaintiff 
when  the  defendant  should  be  thereunto  afterwards  requested ;  yet 
the  defendant,  although  requested,  refused  to  re-deliver  them,  and 
unjustly  detained  them. 

Second  count,  that  the  plaintiff  was  lawfully  possessed,  as  of  his 
own  property,  of  certain  other  deeds  (describing  them),  and,  being 
so  possessed,  lost  them,  and  they  came  to  the  defendant's  possession 
by  finding.  Yet  the  defendant,  knowing  them  to  be  the  property 
of  the  plaintiff,  had  not  delivered  them  to  plaintiff,  though  re- 
quested, but  detained  them. 

Pleas:  1st,  non  detinet;  2dly,  that  the  plaintiff  did  not  deliver 
the  deeds  to  the  defendant ;  3dly,  that  the  plaintiff  was  not  law- 
fully possessed  of  the  deeds,  as  of  his  own  property ;  4thly,  that 
they  were  not  the  property  of  the  plaintiff;  5thly,  that  defendant, 
as  a  conveyancer,  had  a  lien  on  them. 

At  the  trial  before  Gaselee,  J.,  Middlesex  sittings  after  last 
Michaelmas  Term,  it  appeared  that  the  defendant  was  entered  as  a 
student  at  one  of  the  Inns  of  Court,  and  had  taken  out  a  certi- 
ficate as  a  conveyancer ;  that  the  deeds  in  question  were  the  title 
deeds  of  an  estate  belonging  to  the  plaintiff's  wife ;  that  tlie 
plaintiff  or  his  agent,  after  his  marriage,  had  delivered  them  to 
the  defendant,  with  instructions  to  prepare  a  conveyance  of  the 
property  ;  that  the  defendant  prepared  the  conveyance  accordingly  ; 
that  an  attorney  was  employed  by  him  to  levy  a  fine  of  the 
property,  to  which  the  plaintiff'  and  his  wife  were  parties  ;  and  that 
a  fine  was  levied  accordingly ;  the  uses  of  which  were  declared  to 
such  person  as  plaintiff's  wife  should  appoint,  and  for  default  of 
appointment,  to  George  Philips,  second  son  of  plaintiff  and  his 
wife. 

The  defendant  detained  the  deeds,  on  the  ground  that  his  charges 
for  preparing  the  conveyance  had  not  been  paid. 

The  learned  judge  directed  the  plaintiff  to  be  nonsuited,  with 


464  CASES    ON   COMMON-LAW   PLEADING. 

leave  to  move  to  set  the  nonsuit  aside  and  enter  a  verdict  instead, 
thinking,  under  the  above  circumstances,  that  he  had  no  property 
in  the  deeds  at  the  time  the  action  was  commenced. 

Best,  C.  J.  This  was  an  action  of  detinue  for  certain  deeds  ;  to 
which  the  defendant  pleaded,  first,  that  he  did  not  detain  them  ; 
secondly,  that  they  were  not  lawfully  in  the  possession  of  plaintiff ; 
thirdly,  that  they  were  not  the  plaintiff's  property.  At  the  time 
the  action  commenced  these  deeds  were  not  the  property  of  the 
plaintiff,  because,  whether  they  were  originally  so  or  not,  the 
plaintiff  had  at  that  time  consented  to  a  fine,  by  which  the  property 
in  the  lands  to  which  the  deeds  referred  had  been  conveyed  to  his 
second  son.  It  is  a  clear  principle  of  law,  that  the  muniments  of 
an  estate  belong  to  the  person  who  has  the  legal  interest  in  it ;  so 
that  if  the  plaintiff  was  originally  entitled  to  receive  the  deeds  on 
request,  he  was  not  so  at  the  time  of  action,  for  he  could  only  be  so 
entitled  as  long  as  the  right  to  the  property  continued  in  him. 

The  case  cited  from  Viner  is  decisive  on  the  point.  That  case 
rests  on  a  decision  in  the  year  books,  in  which  the  party  delivering 
a  deed  to  the  bailee  had  originally  a  right  to  it ;  but  his  right 
having  passed  away,  the  court  held  he  could  not  sue  the  bailee. 
No  distinction  has  been  pointed  out  between  that  case  and  the 
present ;  and  it  is  perfectly  consistent  with  good  sense.  Why 
should  not  the  rightful  owner  in  such  a  case  sue  at  once  ?  Why 
sliould  the  party  who  originally  delivered  the  deed  be  supposed  to 
retain  a  special  property  in  it,  in  order  to  do  that  which  the  true 
owner  might  do  directly  ?  I  do  not  agree  to  the  position  that 
a  principal  may  in  all  cases  recover  property  which  he  has 
delivered  to  his  agent.  Suppose  a  principal  delivers  the  property 
of  another  who  claims  it  at  the  hands  of  the  agent :  could  the 
agent  set  up  as  a  defence  that  he  received  the  property  from  his 
principal  ?  Certainly  not.  He  would  be  answerable  to  the  true 
owner,  and  not  to  the  false  claimant.  With  respect  to  the  supposed 
analogy  between  this  case  and  that  of  a  landlord  and  tenant,  it  is 
true  a  tenant  cannot  dispute  that  his  landlord  had  a  title  at 
the  time  of  the  lease,  but  he  may  show  that  the  title  has  expired 
subsequently  to  the  lease.  England  d.  Syburn  v.  Slade,  4  T.  K.  682. 
So  here  the  defendant  may  admit  that  the  plaintiff  had  once  a  title 
to  these  deeds,  but  insist  that  he  parted  with  it  before  the  com- 
mencement of  this  action.  Dixon  v.  Hamond  has  no  bearing  on 
the  present  question.  In  that  case,  a  ship,  originally  belonging  to 
one  of  two  partners,  had  been  conveyed  to  one  Hart  for  securing 
a  debt;  subsequently  Hart  conveyed  her  to  the  defendant  upon 
his  advancing  to  Hart  the  sum  secured:  the  defendant,  who  was 


PLEAS    IX    BAR.  465 

an  insurance  broker,  afterwards  effected  an  insurance  in  the  names 
of  the  two  partners,  charged  them  with  the  preminms,  and,  the 
ship  having  been  lost,  received  the  amount  of  the  insurance  as 
their  agent,  but  refused  to  pay  such  money  to  the  assignees  of  the 
two  partners,  alleging  that  he  was  only  accountable  to  the  repre- 
sentative of  the  single  partner  to  whom  the  ship  first  belonged. 
The  court  would  not  endure  so  dishonest  a  proceeding ;  and 
Abbott,  J.,  said, "  The  defendant  has  received  the  money  as  agent  for 
the  partnership,  and  he  cannot  now  be  permitted  to  say  that  he  re- 
ceived it  for  the  benefit  of  Flowerdew  alone."  The  present 
defendant  has  not  received  money  for  two  persons,  and  then 
attempted  to  say,  "  I  received  it  only  for  one ;  "  but  he  has  received 
deeds  under  color  of  a  title  which  has  now  passed  away  from  the 
party  who  delivered  them.  Suppose  the  case  of  the  conusor  of  a 
fine  :  the  estate  and  muniments  belong  to  the  conusee  after  the 
levying  of  the  fine :  could  the  conusor,  after  the  fine  had  passed, 
maintain  trover  against  the  attorney  for  not  re-delivering  the  title 
deeds  of  the  estate  ?  When  the  right  to  the  estate  went,  the  right 
to  the  muniments  went  also.  The  present  case  is  of  the^ame 
nature,  and  the  rule  for  setting  aside  the  nonsuit  must  be 
discharged. 

Park,  J.  In  supporting  this  nonsuit  I  am  not  afraid  of  impeach- 
ing any  principle  of  law.  In  order  to  support  an  action  of  detinue, 
the  plaintiff  must  have  a  general  or  a  special  property  in  what  he 
seeks  to  recover.  If  he  has  not  such  a  property,  it  may  be  shown 
on  the  plea  of  non  detinet.  But  at  all  events  the  fourth  plea  in 
this  case  has  been  clearly  established.  The  plaintiff  had  no 
property  whatever  in  these  deeds  at  the  time  of  the  action  :  it  was 
all  gone  by  the  operation  of  the  fine :  if  so,  the  case  in  Viner  is  in 
terms  the  same  as  the  present.  The  plaintiff  here  liad  conveyed 
the  property  to  his  son  ;  and  he,  therefore,  might  have  sued  for  the 
deed,  although  he  had  never  been  in  possession  of  the  property. 
Eoll.  Abr.  Detinue.  Therefore,  without  entering  on  the  defendant's 
right  to  detain,  it  is  clear  the  plaintiff  had  no  right  to  sue. 

Burrough,  J.  In  detinue  the  plaintiff  may  recover  either  the 
specific  thing  detained,  or  the  value  of  it.  But  what  value  could 
the  jury  find  for  the  plaintiff  in  the  present  case  ?  I  am  clearly  of 
opinion  that  this  was  an  answer  to  tlie  action  upon  non  detinet. 
The  province  of  the  jury  in  this  respect  cannot  be  supplied  by  a 
writ  of  inquiry.  But  in  order  to  establish  that  the  deeds  are  of 
any  value  to  him,  the  plaintiff  must  show  that  he  has  a  right  to 
them.  In  Co.  Lit.  283,  it  is  laid  down  :  "  If  the  defendant  plead 
non  detinet,  he  may  give  in  evidence  a  gift  by  the  plaintiif,  for 

30 


466  CASES   ON   COMMON-LAW   PLEADING. 

tliat  shows  he  does  not  detain  his  goods."  At  the  time  of  this 
action  the  plaintiff  had  no  interest  in  these  deeds ;  they  were  of  no 
value  to  him  ;  and,  therefore,  the  nonsuit  was  right. 

Gaselee,  J.  I  had  some  doubts  at  first  whether  want  of 
property  in  the  plaintiff  might  be  given  in  evidence  on  ywn  detinet, 
but  the  passage  from  Lord  Coke  renders  that  point  clear.  If  the 
defendant  relies  on  a  lien,  that  must  be  specially  pleaded ;  but  he 
may  give  in  evidence,  under  non  detinet,  that  the  plaintiff  has  no 
property  in  the  thing  sought  to  be  recovered.  The  circumstance 
that  the  plaintiff  delivered  the  deeds  to  the  defendant  will  not  avail 
him^saince  he  himself  has  subsequently  executed  a  conveyance 
which  carries  the  deeds  with  it.  "  Eule  discharged.^ 


/ 


Section  VII. 
EEPLEVIN. 

MICHAEL  F.   D'ARCY   v.   JENNIE  D.    STEUR.* 

Supreme  Judicial  Court  of  Massachusetts.     1901. 
Reported  179  Massachusetts,  40. 
Non  cepil  does  not  put  iu  issue  property  in  the  replevied  goods. 

Eeplevin  for  certain  doors  alleged  to  be  the  property  of  the 
plaintiff  and  detained  by  the  defendant.     Writ  dated  May  4,  1899. 

The  answer  was  a  general  denial. 

In  the  Superior  Court  the  case  was  heard  without  a  jury  by 
Stevens,  J.,  who  found  for  the  defendant  and  assessed  damages  in 
the  sum  of  %l.  Afterwards  the  defendant  moved  for  an  order  for 
a  return.  The  plaintiff  objected  on  the  ground  that  the  answer 
being  only  a  general  denial  did  not  set  up  title  to  the  goods  in  the 
defendant  or  show  any  grounds  for  a  return  of  the  goods  replevied, 
and  requested  the  judge  to  rule  that  an  order  for  a  return  should 
not  issue.  The  judge  refused  so  to  rule,  and  granted  the  motion 
of  the  defendant  that  an  order  of  return  should  issue.  The  plain- 
tiff alleged  exceptions. 

G.  J.  Weller,  for  the  plaintiff. 

P.  Tworoger,  for  the  defendant. 

Holmes,  C.  J.  An  answer  in  the  form  of  a  general  denial  long 
has  been  sanctioned  under  our  practice  act.  Boston  Relief  &  Sub- 
marine Co.  V.  Burnett,  1  Allen,  410.  It  is  permissible  in  replevin, 
as  in  other  actions,  and  puts  in  issue  the  plaintiff's  right  of  posses- 

1  The  arguments  of  Wilde,  Serjt.,  for  the  plaintiff,  and  Gross  and  Spankie,  Serjts., 
for  the  defendant,  are  omitted. 


PLEAS   IN   BAR.  467 

sion.  Spooner  v.  Cummings,  151  Mass.  313.  In  other  words  it  is 
broader  than  the  old  plea  non  cepit,  and  dispenses  with  the  neces- 
sity of  an  avowry  or  cognizance  in  order  to  justify  a  judgment  for 
a  return.  See  BartJett  v.  Prickett,  98  Mass.  521 ;  Pub.  Sts.  c.  184, 
s.  13.  The  practice  in  many  otlier  states  under  statutes  would  seem 
to  be  more  or  less  like  ours.  Fleet  v.  Lockwood,  17  Conn.  233, 
243;  Holiday  v.  McKinrie,  22  Fla.  153,  158;  Connor  v.  Comstock, 
17  Ind.  90,  92,  93  ;  King  v.  Eamsay,  13  111.  619,  623  ;  Bates  v. 
Buchanan,  2  Bush,  117. 

Exceptions  overruled. 


/ 


CALVIN  GOULD   v.    THOMAS   BARNARD. 
Supreme  Judicial  Court,  Massachusetts.     1807. 
Reported  3  Massachusetts,  199. 
This  must  be  done  by  an  avowry  or  conusance. 

This  was  a  writ  of  replevin,  to  which  the  defendant  pleaded,  in 
abatement,  that,  at  the  time  of  the  service  of  the  writ,  it  was  not 
endorsed  by  any  responsible  person  with  his  Christian  and  sur- 
name, as  the  law  requires. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined  in 
demurrer. 

Bliss,  for  the  plaintiff,  argued  that  the  statute,  which  required 
writs  to  be  endorsed  by  the  plaintiff,  related  only  to  those  writs, 
the  forms  of  which  were  prescribed  by  that  statute,  1784,  c.  28. 
But  he  seemed  to  rely  more  on  the  special  provision  prescribed 
by  the  statute  particularly  relating  to  this  process  of  replevin, 
1789,  c.  26,  which  requires  the  plaintiff  to  give  bond  to  the  sheriff 
in  double  the  value  of  the  goods  to  be  replevied,  conditioned, 
among  other  things,  for  the  payment  of  the  costs  which  the  defend- 
ant might  eventually  recover  in  the  action.  This  special  provision, 
being  in  a  statute  posterior  to  that  requiring  original  writs  to  be 
endorsed,  has  superseded  the  use  or  necessity  of  such  endorsement 
in  this  case,  even  if  the  former  statute  should  be  understood  to 
apply  to  writs  of  replevin,  of  which  there  is  great  room  to  doubt, 
as  the  necessity  of  giving  bond  in  suing  out  writs  of  replevin, 
existed  long  before  the  law  required  writs  to  be  endorsed  for  the 
securing  to  the  defendant  his  costs. 

Ashman,  for  the  defendant,  observed  that  the  words  of  the 
statute  required  "  all  original  writs  issuing  out  of  the  Supreme 
Judicial  Court,  and  Court  of  Common  Pleas  "  to  be  endorsed, 
whether  those  prescribed  in  that  statute,  or  in  any  prior  or  posterior 


468  CASES    ON    COMMON-LAW   PLEADING. 

Statute.  The  language  is  authoritative  and  binding.  No  argu- 
ment, showing  that  in  any  particular  case,  there  is  less  necessity 
or  use  in  the  endorsement,  can  avail  against  the  plain  and  positive 
requirement  of  a  statute.  We  are  not  bound  to  give  reasons  which 
induce  the  legislature  to  enact  any  particular  law.  It  is  enough 
for  citizens  to  understand  and  obey  it,  and  for  courts  to  enforce  it, 
when  enacted.  One  reason,  however,  of  this  provision,  and  it  will 
apply  as  well  to  writs  of  replevin  as  to  any  other  original  writs, 
may  have  been  that  the  defendant,  by  the  plaintiff's  signature  on 
the  back  of  the  writ,  may  be  assured  that  the  action  was  really 
commenced  at  his  instance.  This  in  many  cases  is  quite  as 
essential  to  the  defendant  as  an  assurance  for  a  bill  of  costs  which 
he  may  eventually  recover.  But  suppose  the  whole  use  of  the  en- 
dorsement to  be  the  assuring  to  the  defendant  his  eventual  costs ; 
the  legislature  might  think  it  proper,  in  an  action  so  different  from 
the  usual  common-law  process,  to  give  a  cumulative  remedy  to  the 
defendant  for  his  costs  by  requiring  a  bond,  over  and  beyond  the 
endorsement  of  the  writ. 

Bliss,  in  reply,  observed  that  the  defendant  might  be  equally 
satisfied  that  the  suit  was  commenced  at  the  plaintiffs  instance  by 
the  bond  given,  as  by  the  endorsement  upon  the  writ.  The  statute 
regulating  the  process  in  replevin  was  not  in  existence  until  years 
after  the  statute  requiring  the  endorsing  of  writs,  was  enacted. 

Parsons,  C.  J.  I  do  not  see  any  benefit  accruing  to  the  defend- 
ant, from  requiring  writs  of  replevin  to  be  endorsed.  The  replevin 
bond,  which  must  be  executed  by  the  plaintiff,  with  sufficient 
surety  or  sureties,  is  conditioned,  among  other  things,  to  pay  the 
defendant  the  costs  he  shall  recover ;  and  to  secure  to  him  his  costs, 
by  a  cumulative  remedy,  does  not  appear  necessary.  But  the 
statute  expressly  requires  all  original  writs  to  be  endorsed,  or  they 
may  be  abated.  A  writ  of  replevin  is,  without  question,  an 
original  writ.     It  must  therefore  be  endorsed. 

Writ  abated. 
After  this  decision,  the  defendant's  counsel  moved  for  a  return. 
The  court,  after  taking  time  to  consider  the  motion,  refused  to 
grant  it.  They  observed  that  as  the  defendant  had  neither  avowed, 
nor  made  conusance,  nor  made  any  plea  or  suggestion  on  record  to 
entitle  him  to  the  possession  of  the  goods,  he  could  not  have  a  re- 
turn, and  they  gave  judgment  only  for 

Costs  for  the  defendant.^ 

1  The  opinions  of  Parker  and  Sedgwick,  JJ.,  are  omitted. 


PLEAS   IN   BAR. 


GILBERT  V.  PARKER. 

In  the  Queen's  Bench.     1704. 
Reported  in  2  Salkeld,  629. 


469 


In  replevin  for  taking  cattle,  the  defendant  made  conusance  that 
A.,  his  master,  was  seised  of  the  locus  in  quo,  and  per  ejus  prcecept, 
he  took  them  damage-feasant.  Plaintiff  replied,  that  he  was  seised 
of  one-third  part,  and  put  in  his  cattle,  alsque  hoc,  that  the  said  A. 
was  sole  seised.  To  this  the  defendant  demurred,  and  judgment 
was  given  against  him ;  for  the  defendant  makes  a  conusance 
under  his  master  as  sole  seised,  when  he  was  only  tenant  in  com- 
mon ;  in  which  case  he  should  have  pleaded  according  to  the  truth, 
that  he  was  only  tenant  in  common,  etc.  When  the  defendant 
pleads  his  master  was  seised  in  fee  of  the  place  where,  etc.,  that 
must  necessarily  be  understood  that  he  is  sole  seised ;  and  what- 
ever is  necessarily  understood,  intended,  and  implied,  is  traversable 
as  much  as  if  it  were  expressed  ;  and,  therefore,  though  a  seisin  in 
fee  is  only  alleged  generally,  yet  that  being  intended  a  sole  seisin, 
the  plaintiff  may  traverse,  absque  hoc,  that  he  is  sole  seised ;  since 
the  plaintiff  makes  himself  tenant  in  common  with  the  defendant, 
it  had  not  been  enough  to  say  that  he  is  tenant  in  common,  with- 
out traversing  the  sole  seisin. 


HILL  V.   WRIGHT. 
At  Nisi  Prius,  coram  Buller,  J.    July,  1798. 
Reported  2  Espinasse,  669. 

This  was  an  action  of  replevin. 

The  defendant,  by  his  avowry,  stated  that  the  plaintiff  held  of 
him  certain  premises,  the  rent  whereof  was  reserved  quarterly,  and 
then  avowed  for  a  quarter's  rent  in  arrear  to  Christmas,  1797. 

Plea  in  bar  to  the  avowry.     No  rent  in  arrear. 

The  counsel  for  the  plaintiff  stated  his  case  to  be,  that  he  held 
under  a  lease  from  the  defendant's  father,  under  whom  the  defend- 
ant claimed;  which  lease  he  had  ready  to  produce,  but  in  which 
the  rent  was  reserved  half  yearly,  and  not  quarterly,  as  the  defend- 
ant had  avowed. 

•  Buller,  J.     The  plaintiff  cannot  go  into  that  evidence  on  these 
pleadings. 

Shepherd,  Serjt.,  contended  that  it  could.     That  the  issue  was, 


470  CASES   ON    COMMON-LAW   PLEADING. 

that  there  was  no  rent  in  arrear  on  the  day  stated  in  the  avowry. 
No  rent  was  by  law  due  till  the  days  on  which  it  was  reserved  and 
made  payable ;  and,  by  the  lease,  those  days  were  Michaelmas  and 
Lady-day ;  so  that  no  rent  was  in  arrear  at  Christmas,  on  which 
day  the  defendant  avowed,  no  rent  being  then  due  or  payable. 

Buller,  J.  Biens  en  arrere  admits  the  title  of  the  defendant  as 
stated  in  the  avowry.  The  holding,  therefore,  must  be  taken  to  be 
a  holding  reserving  the  rent  quarterly.  The  plaintiff  might  have, 
by  his  plea  in  bar,  denied  the  holding.  He  has  not  done  so,  but 
chosen  to  take  issue  only  on  no  rent  being  in  arrear  at  Christmas, 
1797.  Unless,  therefore,  he  can  show  that  he  has  paid  the  rent  up 
to  that  time,  the  defendant  must  have  a  verdict. 

The  plaintiff  having  no  evidence  to  that  effect,  the  defendant  had 
a  verdict. 

DOVER  V.  RAWLINGS. 

At  Nisi  Prius,  coram  Tindal,  C.  J.     February,  1844. 

Reported  2  Moody  &  Robixson,  544. 

Replevin.     Plea,  non  cepit,  and  issue  thereon. 

The  plaintiff  proved  a  seizure  of  the  goods  by  the  defendant,  but 
failed  in  proving  any  property  in  them,  or  that  at  the  time  of  the 
seizure  they  were  in  his  (the  plaintiff's)  possession. 

Channel!,  Serjt.,  objected  that  upon  the  issue  joined  it  was  neces- 
sary for  the  plaintiff  to  show  himself  in  possession  of  the  goods. 
The  New  Rules  had  introduced  no  alteration  in  the  pleadings  in  re- 
plevin, and  before  those  rules  non  cepit  put  the  property  in  issue. 

Tindal,  C.  J.  I  agree  that  the  New  Rules  do  not  apply  to  this 
form  of  action  ;  but  I  find  that  in  Comyns's  Digest  a  plea  is  given 
expressly  denying  the  property,  and  I  think  that  the  plea  of  non 
cepit  would  not,  according  to  the  old  course  of  pleading,  put  the 
plaintiff  on  proof  of  the  possession.  The  plaintiff  accordingly  had 
a  verdict. 

ARUNDELL  v.   TREVILL. 
Ix  THE  King's  Bench.     1672. 
Reported  Siderfin,  81. 

In  replevin  brought  by  an  executor  for  a  mare  and  colt,  the  de- 
fendant pleaded  not  guilty  of  the  taking  aforesaid  within  six  years 
now  last  past,  and  it  was  urged  for  the  defendant  that  this  is  a  good 
plea,  because  it  is  in  effect  non  cepit.  .  .  .  But  upon  consultation 
it  was  resolved  by  the  court  that  the  plea  is  not  good,  because  it 


PLEAS   IN   BAR.  471 

does  not  answer  the  detainer  forasmuch  as  here  the  colt  was  not 
taken  but  sold  in  the  pound,  and  one  may  distrain  a  thing  lawfully 
and  afterwards  may  detain  it  unlawfully,  as  when  one  puts  it  in  a 
castle,  etc.,  so  that  it  cannot  be  replevied.  Fitz.  Repl.  6-21.  And 
as  for  its  being  said  that  the  executor  may  not  have  replevin,  the 
law  is  contra.  Fitz.  N.  B.  121  .  .  .  for  replevin  affirms  property 
and  so  the  executor  may  well  have  this  or  quare  impedit  or  ravish- 
ment of  his  ward. 


RECAPITULATION   OF   THE   GENERAL   ISSUE. 

"  In  trespass  to  persons,  the  general  issue  of  not  guilty  may  be 
properly  pleaded,  if  the  defendant  committed  no  assault,  battery, 
or  imprisonment,  etc. ;  in  the  trespass  to  personal  property,  if  the 
plaintiff  had  no  property  in  the  goods  ;  and  in  trespass  to  the  real 
property,  if  he  was  not  in  possession  of  the  land,  etc.  And  liberum 
tenemenfum,  or  other  evidence  of  title  or  right  to  the  possession, 
may  be  given  in  evidence,  under  the  general  issue.  But  regularly, 
by  the  common  law,  matter  of  excuse  or  justification  must  be 
specially  pleaded;  as  in  trespass  to  persons, or  justification  must  be 
specially  pleaded;  as  in  trespass  to  persons,  son  assault  demesne; 
or  in  trespass  to  real  property,  a  license;  that  the  beasts  came 
through  the  plaintiff's  hedge,  which  he  ought  to  have  repaired  ;  or 
in  respect  of  a  rent-charge,  common  or  the  like.  And  the  defend- 
ant must  plead  specially  a  release  or  other  matter  in  discharge  of 
the  action.  But  in  actions  against  justices,  etc.,  and  in  various 
other  cases,  the  defendant  by  act  of  Parliament  is  allowed  to  plead 
the  general  issue,  and  give  the  special  matter  in  evidence. 

"In  actions  upon  the  case,  the  defendant,  upon  the  general  issue 
of  not  guilty,  may  not  only  put  the  plaintiff  upon  proof  of  the 
whole  charge  contained  in  the  declaration,  but  may  offer  any 
matter  in  excuse  or  justification  of  it ;  or  he  may  set  up  a  former 
recovery,  release  or  satisfaction :  for  an  action  upon  the  case  is 
founded  upon  the  mere  justice  and  conscience  of  the  plaintiff's 
case,  and  is  in  the  nature  of  a  bill  in  equity,  and  in  effect  is  so  ; 
and  therefore  such  a  former  recovery,  release,  or  satisfaction  need 
not  be  pleaded,  but  may  be  given  in  evidence  ;  since  whatever  will, 
in  equity  and  conscience,  according  to  the  circumstances  of  the 
case,  bar  the  plaintiffs  recovery,  may,  in  this  action,  be  given  in 
evidence  by  the  defendant ;  because  the  plaintiff  must  recover  upon 
the  justice  and  conscience  of  his  case,  and  upon  that  only.  In  an 
action  for  words,  the  truth  of  the  words  cannot  be  given  in  evi- 
dence, under  the  general  issue  of  not  guilty.     And  by  the  8  &  9 


472  CASES    ON    COMMON-LAW    PLEADING. 

Will.  Ill,  c.  27,  s.  6,  '  no  retaking  on  fresh  pursuit  shall  be  given 
in  evidence,  on  the  trial  of  any  issue,  in  any  action  of  escape, 
against  the  marshal,  etc.  unless  the  same  shall  be  specially  pleaded  ; 
nor  shall  any  special  plea  be  received  or  allowed,  unless  oath  be 
first  made  in  writing  by  the  defendant,  and  filed  in  the  proper 
office,  that  the  prisoner,  for  whose  escape  such  action  is  brought, 
did  escape  without  his  consent,  privity  or  knowledge.' 

"  Where  the  defence  consists  of  matter  of  fact,  and  the  general 
issue  may,  it  ought  to  be  pleaded  ;  it  being  in  such  case  a  good 
cause  of  demurrer,  that  the  plea  amounts  to  the  general  issue. 
But  it  is  observable,  that  in  many  cases,  where  the  defence  consists 
of  matter  of  law,  the  defendant  may  either  plead  it  specially,  or 
give  it  in  evidence  under  the  general  issue ;  as  in  assumpsit, 
infancy,  accord  and  satisfaction,  or  a  release,  etc.  may  be  either 
pleaded,  or  given  in  evidence  upon  non  assumpsit ;  and  in  debt  on 
bond,  made  by  a  married  woman,  the  defendant  may  either  plead 
coverture,  or  give  it  in  evidence  upon  non  est  factum.  In  these 
cases,  from  the  nature  of  the  defence,  the  plaintiff  has  an  implied 
color  of  action,  bad  indeed  in  point  of  law,  if  the  facts  pleaded  be 
true,  but  which  is  properly  referred  to  the  decision  of  the  court. 
And  where,  from  the  nature  of  the  defence,  the  plaintiff  would 
have  no  implied  color  of  action,  the  defendant,  in  some  cases,  is 
allowed  to  give  him  an  express  color.  Thus  in  the  common  and 
almost  only  case  where  express  color  is  now  given,  if  in  an  action 
of  trespass  quare  clausum  /regit,  the  defendant  plead  a  possessory 
title,  under  a  demise  from  a  third  person,  (for  if  he  claim  under  the 
plaintiff,  there  is  an  implied  color)  this,  without  more,  would 
amount  to  the  general  issue ;  for  it  goes  to  deny  that  the  trespass 
was  committed  in  the  plaintiffs  close :  but  if  the  defendant,  after 
stating  his  ov/n  title,  supposes  (as  is  usual)  that  the  plaintiff 
entered  upon  him,  under  color  of  a  former  deed  of  feoffment 
without  livery,  and  that  he  re-entered,  this  creates  a  question  of 
law,  for  the  decision  of  the  court ;  and  by  that  means  prevents  the 
plea  from  amounting  to  the  general  issue  ;  and  being  matter  of 
supposal,  it  is  not  traversable. 

"  In  trespass  for  taking  goods  if  the  defendant  plead  that  A  was 
possessed  of  them,  as  of  his  proper  goods,  and  sold  them  in  market- 
overt,  or  that  B  stole  the  goods  from  A  and  waived  them  witliin 
his  manor,  wherefore  he  took  them,  the  defendant  must  give  color; 
for  his  plea  proves  that  no  property  was  in  the  plaintiff,  so  he  had 
no  color  of  action  ;  and  the  color  usually  given  in  such  cases  is, 
that  the  defendant  bailed  the  goods  to  a  stranger,  who  delivered 
them  to  the  plaintiff,  from  whom  the  defendant  took  them.     But 


PLEAS    IN    BAR.  473 

in  the  same  cases,  if  the  defendant  plead  that  A  sold  the  goods 
in  market-overt,  without  saying  that  they  were  his  own,  or  that 
B  took  them  de  quodam  ignoto,  and  waived  them,  the  plea  is  good 
without  color ;  for  it  does  not  deny  but  that  the  property  was  in 
the  plaintiff,  and  the  defendant  is  not  bound  to  show  expressly  in 
whom  it  was."     Tidd,  Practice,  597-601. 


II.   PLEAS   IN    CONFESSION   AND   AVOIDANCE. 

(a)    In  Justification  or  Excuse. 

B.  says  to  C,  "  A.  murdered  X." 

A.  sues  B.  for  slander. 

The  words  are  true.  B.  cannot  plead  not  guilty^  for  he 
did  speak  the  words. 

B.  will  plead  a  special  plea.  He  will,  in  effect,  say,  "  I 
confess  that  I  spoke  the  words,  but  I  avoid  their  legal  effect 
by  saying  that  they  are  true." 

(b)    In  Discharge. 

B.  executes  and  delivers  to  A.  a  specialty  promising  to 
pay  A.  £10  at  Easter. 

At  Easter,  B.  refuses  to  pay. 

A.  brings  an  action  of  debt  on  B.'s  bond.  B.,  however, 
has  a  release  under  seal  from  A.,  executed  and  delivered 
the  day  after  the  delivery  of  the  obligation  on  which  suit 
is  brought. 

B.  cannot  plead  non  est  factum,  for  the  deed  sued  on  is 
his  deed.  B.  will  plead  a  special  plea.  He  will,  in  effect,  say, 
"  I  confess  the  signing,  sealing,  and  delivery  of  the  obliga- 
tion on  which  I  am  sued,  but  1  repel  its  legal  effect  by 
showing  to  you  this  release  under  seal  by  A.  of  my  debt  to 
him." 

"  The  quality  of  a  plea  in  confession  and  avoidance  is  more 
peculiar  [than  that  of  a  plea  in  denial],  and  demands  particular 
attention.  A  plea  of  this  description  is  either  in  justitication  or 
excuse  of  the  matters  alleged  in  the  declaration ;  as,  imprisonment 
under  a  magistrate's  warrant,  or  son  assault  demesne  in  trespass ;  or 
it  is  in  discharge  of  the  cause  of  action  by  subsequent  matter,  as 
accord  and  satisfaction,  or  a  release.     It  is  observable  that  each  of 


/ 


474  CASES   ON   COMMON-LAW   PLEADING. 

these  pleas  admits  the  mere  facts  stated  in  the  declaration,  as  that 
the  defendant  committed  the  trespass  charged ;  that  the  contract 
was  made,  or  the  debt  was  incurred,  etc.  But  the  matter  which 
they  allege  by  way  of  defence  defeats  or  avoids  the  legal  effect  of 
those  facts,  and  disproves,  if  true,  the  plaintiff's  right  of  action.  .  .  . 
"  It  is  plain  that  a  plea  which  shows  some  new  matter  in  avoidance 
or  discharge  of  the  plaintiff's  allegations  is  double  and  argumenta- 
tive, if  it  do  not  admit  the  apparent  truth  of  those  allegations  as 
matter  of  fact.  There  can  be  no  occasion  to  adduce  grounds  for 
defeating  the  operation  of  disputed  facts.  The  yjlea  in  avoidance 
must  therefore  give  color  to  the  plaintiff,  that  is,  must  give  him 
credit  for  having  an  apparent  or  prima  facie  right  of  action,  inde- 
pendently of  the  matter  disclosed  in  the  plea  to  destroy  it."  Chitty, 
Pleading,  *552. 

RADFORD   V.   HARBYN. 

In  the  Kixg's  Bench.     1606. 

Reported  Croke's  James,  122. 
Color  defined. 

Trespass,  for  taking  and  carrying  away  a  hundred  load  of  wood. 
The  defendant  justifies,  for  that  J.  S.  was  possessed  of  them  ut 
de  bonis  propriis ;  and  the  plaintiff  claiming  them  by  color  of  a 
deed  of  gift  of  them  afterward  made,  took  them,  and  the  defendant 
retook  them. 

It  was  thereupon  demurred  :  Because  the  color  given  to  the 
plaintiff  is  a  good  title  for  the  plaintiff,  and  confesseth  the  interest 
in  him ;  for  color  ought  to  be  such  a  thing  which  is  good  color 
of  title,  and  yet  is  not  any  title  ;  as  a  deed  of  a  lease  for  life,  because 
it  hath  not  fhe  ceremony,  viz.  livery.  So  grant  of  a  reversion 
without  attornment  is  not  good  ;  but  a  deed  of  goods  and  chattels 
without  other  act  or  ceremony  is  good.  So  of  color  by  a  lease  for 
years  or  letters  patent,  it  is  not  good ;  because  they  make  a  good 
title  in  the  plaintiff.  —  And  of  that  opinion  was  all  the  court. 

HATTON   V.  MORSE. 
In  the  Queen's  Bench.    1702. 
Reported  3  Salkeld,  273. 
Kinds  of  color  distinguished. 

There  is  a  short  note  of  this  case  in  1  Salk. ;  but  the  case  was 
thus  :  ss.  In  assumpsit,  etc.  The  defendant  pleaded,  that  true  it  is  he 
did  promise,  but  th.a.t  ante  diem  impetrationis  hilloe,  he  paid  the  money; 


PLEAS   IN   BAR.  475 

and  upon  a  demurrer  to  this  plea  it  was  objected,  that  it  amounted  to 
the  general  issue.  But  per  Holt,  Ch.  Just.  This  doth  not  amount 
to  the  general  issue  ;  for  though  payment  may  be  given  in  evidence 
upon  non  assumpsit  pleaded,  yet  it  was  long  before  that  obtained; 
it  is  likewise  giving  color,  for  he  says,  there  was  a  promise,  but 
that  he  performed  it :  now  there  are  many  things  which  may  be 
given  in  evidence  under  the  general  issue,  and  yet  those  things  may 
be  pleaded  specially  :  as,  for  instance,  in  an  action  of  debt  the 
defendant  may  plead  a  release,  or  he  may  give  it  in  evidence  upon 
nil  debet  pleaded,  so  in  debt  for  rent  upon  a  demise,  the  defendant 
may  plead  an  entry  and  eviction,  before  any  rent  became  due,  or 
he  may  give  it  in  evidence  upon  nil  debet. 

8.  There  are  two  sorts  of  color,  the  one  is  express,  the  other 
implied. 

9.  Express,  as  in  trespass  quare  clausuin  f regit,  the  defendant  in 
pleading  makes  title  under  W.  E.  setting  forth,  that  the  plaintiff 
claims  under  a  feoffment  from  the  said  W.  K.  by  which  nothing 
passed,  but  that  he  entered  by  color  thereof :  now  here  the 
defendant  gave  color  of  action  to  the  plaintiff  because  by  the 
feoffment  he  was  tenant  at  will,  and  entered,  and  by  virtue  of  his 
possession  he  may  maintain  an  action  against  every  one,  but  not 
against  him  who  hath  a  right ;  so  likewise  in  trespass  quare  clausum 
/regit,  if  the  defendant  pleads,  that  the  plaintiff  was  seised,  etc., 
and  made  a  lease  to  him  for  years,  there  is  no  occasion  to  give 
express  color,  because  the  defendant  allows,  that  the  plaintiff  hath 
the  reversion,  which  is  color  enough.^ 


^ 


HALLET  V.   BYRT. 
In  the  King's  Bench.     1698. 
Reported  5  Modern,  252. 
In  trespass,  possession  is  a  good  color. 

Trespass  against  Byrt  and  Hallet,  for  taking  and  detaining  the 
plaintiff's  cattle. 

The  defendants  plead  not  guilty  as  to  all,  but  the  taking  three 
cows:  and  as  to  that,  they  say,  that  the  hundred  of  Beaminster  is  an 
ancient  hundred,  whereof  the  Bishop  of  Salisbury  was  seised  in  fee, 
and  that  he  and  his  predecessors  have  time  out  of  mind  kept  a  court 

1  Per  Holt,  Chief  Justice,  in  Ashmead  v.  Ranger,  1  Ld.  Raym.  551  :  "If  the  plain- 
tiff replies,  the  defect  of  color  ia  waived ;  but  upou  a  general  demurrer  advantage 
might  have  been  taken  of  it." 


476  CASES   ON   COMMON-LAW   PLEADING.         4 

there  from  three  weeks  to  three  weeks,  for  tjie»  "^ialy  of  personal 
actions,  under  the  vaRie  of  forty  shillings,  and  so  prescribes  to  grant 
replevin  either  by  himself  or  steward  in  court,  or  out  of  court,  upon 
complaint  made  to  them  of  the  taking,  and  unjustly  detaining  any 
cattle  within  the  said  hundred  :  that  the  Bishop  afterwards  conveyed 
this  hundred  to  one  Whitlock  for  three  lives,  by  virtue  whereof  he 
was  seised  ;  that  the  plaintiff  and  one  Rodbart  took  and  impounded 
the  cows  within  the  said  hundred,  being  the  cows  of  a  stranger, 
who  made  complaint  thereof  to  the  steward,  and  he  directed  his 
warrant  to  the  bailiff  of  the  hundred,  and  to  the  said  Hallet,  com- 
manding them  to  replevy  the  cattle ;.  by  virtue  whereof,  Hallet, 
and  the  other  defendant  Byrt,  in  auxilmm  ejus,  did  take  and  de- 
liver them  to  the  owner ;  and  traversed  that  they  were  guilty  of  the 
taking  at  any  time  before  the  warrant,  or  after  the  return,  aliter  vel 
aliter  modo. 

The  plaintiff  demurred,  and  showed  for  cause  that  this  plea 
amounted  to  the  general  issue. 

But  it  was  argued,  to  maintain  it,  that  there  was  sufficient  color 
to  make  this  plea  good,  for  in  an  action  of  trespass,  possession  is  a 
good  color ;  and  the  defendant  may  have  the  benefit  of  such  plea, 
when  the  substance  of  it  is  by  way  of  excuse,  though  he  might 
have  pleaded  the  general  issue. 

E  contra} 

But  the  court  did  not  speak  to  this  point.^ 

"  Where  the  defence  consists  of  matter  of  fact,  merely  amounting 
to  a  denial  of  such  allegations  in  the  declaration  as  the  plaintiff 
would  on  the  general  issue  be  bound  to  prove  in  support  of  his 
case,  a  special  plea  is  bad,  as  unnecessary  and  amounting  to  the 
general  issue :  first,  because  such  special  plea,  if  considered  as  a 
traverse,  tends  to  needless  prolixity  and  expense,  and  is  an  argu- 
mentative denial  and  a  departure  from  the  prescribed  forms  of 
pleading  the  general  issue;  and,  secondly,  if  viewed  as  a  plea  in 
confession  and  avoidance,  it  does  not  give  color  or  a  plausible 
ground  of  action  to  the  plaintiff. 

"  Thus,  in  assumpsit  or  debt  on  a  simple  contract,  a  plea  of  matter 
which  shows  that  no  such  contract  was  in  fact  made,  is  bad ;  as  a 
plea  in  an  action  for  the  price  of  a  horse,  *  that  the  defendant  did 
not  buy  the  horse.*  "     Chitty,  Pleading,  *552. 

1  The  argument  e  contra  is  omitted. 

2  Tlie  plaintiff  liad  judgment  on  another  ground,  the  plea  being  uaught,  for  that 
the  hundred  courts  could  not  legally  hold  pleas  in  replevin. 


(^ 


PLEAS   IN    BAR.  477 

GOULD   V.  LASBURY. 
Ix  THE  Exchequer.     1834. 
Reported  1  Crompton,  Meesox,  &  Roscoe,  254. 
The  confession,  in  a  plea  of  confession  and  avoidance,  must  be  unqualified. 

Declaration  in  debt  on  simple  contract.  Plea,  that  the  defendant 
was  discharged,  under  the  Insolvent  Debtors'  Act,  "  from  the  debts 
and  causes  of  action,  if  any,  and  each  and  every  of  them."  Special 
demurrer,  assigning  for  cause  that  the  said  plea  did  not  confess  and 
avoid  the  cause  of  action,  etc. ;  and  that  the  plea  neither  set  out  the 
charge  specially  nor  was  pleaded  generally,  in  the  form  given  by 
the  statute. 

Erie,  in  support  of  the  demurrer.  There  are  two  defects  in  this 
plea :  First,  the  well-known  rule  of  law,  that  a  plea  must  either 
traverse,  or  confess  and  avoid,  is  violated.  A  plea  like  this,  of  con- 
fession and  avoidance,  must  admit  and  confess  the  matter  stated  in 
the  declaration  distinctly.  Taylor  v.  Cole,  3  Term  Eep.  292,  is  a 
decisive  authority  on  this  point.  So  in  Griffiths  v.  Eyles,  1  Bos.  & 
Pull.  413,  where  a  hypothetical  replication  was  attempted.  Chief 
Justice  Eyre  said  that  the  party  could  not  plead  hypothetically. 
The  admission  here  is  most  clearly  hypothetical.  Secondly,  if  the 
statute  gives  a  form  of  pleading,  the  party  must  either  conform  to 
that  form,  or  must  plead  in  the  more  special  form,  which  the  usual 
rules  of  law  would  present.  Sheen  v.  Garrett,  6  Bing.  686.  Here 
the  plea  is  general,  that  the  party  was  discharged ;  but  it  does  not 
follow  the  form  given  by  the  act,  which  contains  no  such  words 
as  "  if  any." 

Kelly,  contra.  The  general  rule,  that  a  party  must  traverse,  or 
confess  and  avoid,  every  material  allegation,  is  not  disputed ;  the 
question  is,  whether  this  i)lea  does  not  substantially  confess  the 
matter  in  the  declaration.  Similar  expressions  are  used  in  numer- 
ous instances  ^nd  are  to  be  found  in  all  the  forms  in  the  books  of 
pleading.  In  pleas  of  the  Statute  of  Limitations,  of  infancy,  of 
bankruptcy,  of  the  Insolvent  Debtors'  Act,  and  of  set-olT,  it  is  usual 
to  use  words  of  this  description.  The  expressions,  "if  any  such 
there  be,"  or  "  the  supposed,"  are  common  in  all  these  forms.  The 
usual  words  were  "  the  supposed  "  causes  of  action,  which  is  quite 
as  hypothetical  an  expression  as  "if  any."  In  a  case  of  Gale  v. 
Capern,  1  Ad.  &  Ell.  102,  in  the  King's  Bench,  which  is  not  yet 
reported,  the  declaration  was  for  goods  sold.  There  was  a  plea  of 
set-off  on  a  bill  of  exchange ;  the  replication  alleged  that  the  "  sup- 


478  CASES   ON   COMMON-LAW   PLEADING. 

posed  "  cause  of  set-off  did  not  accrue  within  six  years,  upon  which 
issue  was  taken.  It  was  held  at  the  trial  that  the  handwriting  of 
the  acceptor  and  indorsers  was  admitted,  and  need  not  be  proved. 
On  motion  for  a  new  trial,  it  was  contended  that  the  word  "  sup- 
posed" prevented  any  such  admission;  but  the  court  held  that  the 
word  "  supposed"  did  not  at  all  alter  the  effect  of  the  replication. 
[Alderson,  B.  You  would  contend  that  the  expression  "supposed" 
is  no  more  than  a  protestation.]  Exactly  so.  The  object  of  the 
rule  of  pleading  is  not  that  there  should  be  an  absolute,  unquali- 
fied, and  express  confession,  but  that  there  should  be  what  may 
amount  to  a  confession  in  the  particular  suit.  There  must  be  such 
a  confession  as  will  relieve  the  other  party  from  the  necessity  of 
proving  it.  [Lord  Lyndhurst,  C.  B.  The  word  "  supposed "  may 
perhaps  be  considered  as  no  more  than  "  alleged."  I  find  the  word 
"  supposed  "  in  several  of  the  forms  you  have  adverted  to,  but  not 
the  words  "if  any  such  there  be."]  In  a  plea  in  abatement  for 
nonjoinder,  the  words,  "  if  any  such  there  be,"  are  invariably  used. 
The  defendant  says  sufficient  if  he  admits  for  the  purpose  of  the 
particular  action,  though  he  protests  for  the  purpose  of  any  other. 
The  forms  alluded  to  show  that  it  is  not  necessary  that  the  con- 
fession should  be  in  the  unqualified  form  contended  for  on  the 
other  side.  If  the  plaintiff  had  replied  generally,  he  would  not  have 
been  bound  to  prove  the  cause  of  action  at  the  trial.  The  present 
form  is  taken  from  a  late  edition  of  an  approved  book  of  pleading. 
Erie,  in  reply.  The  plea  does  not  amount  to  an  unqualified  ad- 
mission. The  admission  is  qualified  and  hypothetical.  In  Taylor 
V.  Cole,  BuUer,  J.,  said,  "  It  is  a  rule  in  pleading  that  the  party 
justifying  must  show  and  admit  the  fact."  The  illustration  of  the 
plea  in  abatement  is  unfortunate  for  the  defendant.  It  is  remark- 
able that  the  plea  in  abatement  is  the  only  mstance  in  which  the 
words,  "  if  any  such  there  be,"  are  used.  The  word  "  supposed  "  is 
nothing  more  than  "  alleged."  Now,  when  the  case  of  a  plea  in 
abatement  is  considered,  the  exception  in  that  case  serves  rather  to 
strengthen  the  general  rule.  The  rule  as  to  confessing;  and  avoiding 
is  only  applicable  to  a  plea  in  bar.  A  plea  in  abatement  need  not 
confess  and  avoid;  the  defendant  is  not  bound  to  traverse  or  confess 
all  matters  alleged ;  he  has  at  that  stage  nothing  to  do  but  to  show 
that  the  plaintiff  may  have  a  better  writ,  and  the  judgment  is  not 
to  be  that  the  plaintiff  is  to  recover  or  not  on  the  allegations  upon 
the  record,  but  that  the  writ  be  quashed,  or  that  the  defendant 
answer  over.  It  is  singular  that  it  is  only  in  the  case  of  such  a 
plea  that  the  words  "  if  any  "  appear  to  be  usually  adopted.  The 
argument  from  the  doctrine  of  protestations  is  equally  inapplicable. 


PLEAS   IN    BAR.  479 

If  a  person  has  to  answer  when  he  either  is  bound  or  chooses  to 
answer  one  matter  only,  there  are  cases  where  he  may  take  the 
other  matters  by  protestation  ;  but  it  is  different  as  to  the  matter 
which  a  party  assumes  to  be  answering.  Besides,  the  facts  taken 
by  protestation  are  admitted  in  the  action  by  a  well-known  rule  of 
law ;  but  here  the  admission  is  coupled  with  a  qualification.  In 
Gale  V.  Capern,  the  only  question  was  as  to  what  was  the  issue  to 
be  tried.  The  handwriting  was  not  in  issue,  but  that  had  nothing 
to  do  with  the  question  of  the  form  of  pleading.  If  it  could  be 
matter  of  doubt  on  the  trial,  we  have  a  right  to  say  on  special 
demurrer  that  it  is  not  well  pleaded.  [Alderson,  B.  In  Taylor  v. 
Cole  and  Griffiths  v.  Eyles  the  fact  was  in  the  peculiar  knowledge 
of  the  party  pleading.]  So,  here,  the  defendant  must  have  known 
whether  he  was  indebted  or  not. 

Lord  Lyndhurst,  C.  B.  It  is  difficult  to  distinguish  the  expres- 
sion "  supposed  "  from  that  of  "  if  any."  As  there  has  been  a  deci- 
sion in  which  a  construction  is  said  to  have  been  put  on  the  word 
"  supposed,"  we  will  confer  with  the  judges  of  the  other  courts. 

Cur.  adv.  vult. 

On  a  subsequent  day  Lord  Lyndhurst,  C.  B.,  said:  In  the  case  of 
Gould  V.  Lasbury,  there  was  a  plea  of  a  discharge  under  the  Insol- 
vent Debtors'  Act,  which  was  contended  to  be  bad,  because  it  did 
not  directly  confess  and  avoid  the  matters  alleged  in  the  declaration, 
but  merely  stated  the  discharge  from  the  said  causes  of  action,  "  if 
any."  A  similar  point  having  been  argued  in  the  King's  Bench,  we 
have  conferred  with  the  judges  of  that  court  on  the  subject,  and  we 
concur  with  them  in  thinking  that  the  words  vitiate  the  plea.  The 
demurrer,  therefore,  must  be  allowed. 

Judgment  for  the  plaintiff.^ 

1  Griffiths  V.  Eyles,  1  B.  &  P.  413;  Margetts  v.  Bays,  4  A.  &  E.  489;  Martin  v. 
Swearingen,  17  Iowa,  346;  Anson  v.  Dwight,  18  Iowa,  241  ;  Morgan  v.  Ins.  Co.,  37 
Iowa,  359  ;  Conger  v.  Johnston,  2  Den.  96  ;  Coinm.  Bank  v.  Sparrow,  2  Den.  97  ;  Hart 
1-.  Meeker,  1  Sandf.  623  ;  Hamilton  v.  Hough,  13  How.  Tr.  14,  accord.  See  McCormick 
V.  Pickering,  4  Comst.  276.  — Ed. 


480  CASES   ON   COMMON-LAW   PLEADING. 


IN   EXCUSE. 

(a)    Special  Assumpsit, 

BRIND   V,  DALE. 

In  the  Exchequer,  Trinity  Term.     1837. 

Reported  2  Meeson  &  Welsby,  775. 

A  plea  averring  matter  which  qualifies  the  contract  declared  on  amounts  to 
the  general  issue. 

Assumpsit.  The  declaration  stated  that  the  defendant,  before  and 
at  the  time  of  the  making  of  the  proniise  thereinafter  mentioned, 
was  a  common  catrier  of  goods  in  and  by  a  certain  cart,  from  divers 
places  to  divers  other  places  ;  and  thereupon  the  plaintiff  thereto- 
fore, to  wit,  on  the  14th  November,  1836,  at  the  request  of  the 
defendant,  caused  to  be  delivered  to  him,  as  such  carrier,  a  certain 
trunk  containing  certain  goods  and  chattels  therein  particularly 
described,  to  be  taken  care  of  and  safely  and  securely  carried  and 
conveyed  by  the  defendant,  as  such  carrier,  in  and  by  the  said  cart, 
from  a  place  called  Nicholson's  Wharf  to  a  place  called  Brook's 
Wharf,  and  there  to  be  safely  and  securely  delivered  by  the  defend- 
ant for  the  plaintiff.  The  declaration  then  alleged  in  the  usual 
terms  a  promise  by  the  defendant  safely  to  carry  and  convey  and 
deliver  the  goods,  and  a  breach  in  not  carrying  safely  whereby  the 
trunk  and  its  contents  were  lost. 

Fifth  plea,  that  at  the  said  time  when  he,  the  defendant,  received 
the  said  goods  and  chattels  from  the  plaintiff,  and  at  the  time  the 
said  supposed  promise  of  the  defendant  was  made,  an  express  con- 
dition and  agreement  was  then  made  and  entered  into  between  the 
plaintiff  and  the  defendant ;  that  is  to  say,  that  whilst  the  defend- 
ant carried  and  conveyed  the  said  trunk  with  the  said  goods  and 
chattels  in  and  by  his  said  cart  from  the  said  place  called  Nichol- 
son's Wharf  to  the\|iid  place  called  Brook's  Wharf,  he  the  said 
plaintiff  would  accompany  and  follow  the  said  cart  of  the  defend- 
ant, and  watch  and  protect  the  said  goods  and  chattels  from  being 
stolen  or  lost  out  of  the  said  cart;  but  that  the  plaintiff,  contrary 
to  the  said  condition  and  agreement  in  that  behalf,  wholly  neglected 
and  refused  to  accompany  and  follow  the  said  cart,  or  to  watch  and 
protect  the  said  goods  and  chattels  from  being  stolen  or  lost  from 
the  said  cart ;  by  reason  whereof,  and  not  by  reason  of  any  negli- 
gence, carelessness,  or  improper  conduct  in  the  defendant  or  his 
servant,  the  said  goods  and  chattels  were  lost.     Verification. 

Special  demurrer,  assigning  for  causes,  first,  that  the  said  plea  does 


PLEAS    IX   BAR.  481 

not  properly  confess  the  promise  in  the  declaration  ;  secondly,  that 
the  matter  of  defence  in  the  said  plea  amounts  to  the  plea  of  non- 
assumpsit,  and  ought  to  have  been  so  pleaded.  The  marginal  note 
stated  that  the  plaintiff  would  also  contend  that  the  plea  was  bad 
in  substance,  inasmuch  as  the  engagement  entered  into  by  the 
plaintiff,  without  consideration,  could  not  limit  the  defendant's 
liability  as  a  common  carrier. 

Barstow,  in  support  of  the  demurrer.  The  defendant  is  in  this 
dilemma,  — either  the  plea  amounts  to  the  general  issue,  or  it  is  no 
answer  to  the  action.  It  sets  up  a  contract  different  from  and  in- 
compatible with  that  alleged  in  the  declaration.  The  court  then 
called  upon 

W.  H.  Watson,  to  support  the  plea.  The  declaration  alleges  the 
defendant  to  be  a  common  carrier,  and  avers  a  delivery  to  him  as 
such.  Though  that  allegation  be  true,  there  may  yet  be  a  special 
agreement,  by  way  of  qualification  of  his  general  liability.  [Parke,  B. 
The  declaration  says,  the  goods  were  delivered  to  be  taken  care  of 
by  the  defendant ;  the  plea  says  they  were  not.]  The  defendant 
says,  in  substance,  "  I  admit  I  received  the  goods  as  a  common 
carrier,  but  I  made  also  a  collateral  agreement  that  the  plaintiff 
should  watch  them."  The  defendant  would  have  his  remedy  over 
against  the  plaintiff  for  not  watching  the  goods  pursuant  to  his 
agreement ;  and  so,  to  avoid  circuity  of  action,  it  is  set  up  in  the 
plea  in  discharge  of  the  plaintiff's  cause  of  action.  [Parke,  B.  The 
effect  of  the  agreement  is  to  protect  the  carrier  from  theft  or  loss ; 
that  qualifies  the  contract.  ]  If  the  court  is  of  opinion  that  it  amounts 
to  a  qualification  of  the  plaintiff's  contract,  not  to  a  substantial  and 
collateral  contract,  the  plea  certainly  cannot  be  sustained. 

Per  curiam. 

Judgment  for  the  plaintiff. 


/ 


SMART   y.  HYDE. 
In  the  Exchequer,  Trinity  Term.     1841. 
Reported  8  Meeson  &  Welsbv,  723. 
For  it  is  a  denial  of  the  contract  declared  on. 

Assumpsit.  The  declaration  stated  that,  in  consideration  that 
the  plaintiff  would  buy  of  the  defendant  a  mare  at  a  certain  price, 
the  defendant  promised  the  plaintiff  that  the  mare  was  sound,  and 
averred  as  a  breach  that  the  mare  was  not  sound. 

The  defendant  pleaded,  amongst  other  pleas,  thirdly,  that,  before 
the  promise,  he  the  defendant  sent  the  mare  to  a  certain  place  for 

31 


482  CASES    ON    COMMON-LAW    PLEADING. 

the  sale  of  horses,  called  Lucas's  Eepository,  there  to  be  sold  accord- 
ing to  certain  rules,  which  were  in  the  words  following:  "Terms 
of  private  sale.  A  warranty  of  soundness,  when  given  at  this  re- 
pository, will  remain  in  force  until  twelve  o'clock  at  noon  of  the 
day  next  after  the  day  of  sale,  when  it  will  be  complete,  and  the 
responsibility  of  the  seller  will  terminate,  unless  in  the  mean  time 
a  notice  to  the  contrary,  accompanied  by  the  certificate  of  a  veteri- 
nary surgeon,  be  delivered  at  the  office  of  11.  Lucas  ;  such  certificate 
to  set  forth  the  cause,  nature,  or  description  of  any  alleged  unsound- 
ness ; "  of  all  which  the  plaintiff,  before  and  at  the  time  of  making 
the  said  promise,  had  notice.  The  plea  then  averred  that  the  sale 
was  a  private  sale,  and  that  the  promise,  and  the  buying  from  the 
defendant,  took  place  subject  to  the  said  rules  and  regulations 
touching  the  private  sale  of  horses,  and  that  the  same  were  agreed 
to  by  the  parties ;  and  although  the  time  limited  by  the  said  rules 
for  the  delivery  of  the  notice  and  certificate  had  elapsed  before  the 
commencement  of  this  suit,  yet  no  such  notice  or  certificate  had 
been  delivered  by  or  for  the  plaintiff,  at  the  office  of  the  said  R 
Lucas.     Verification. 

Special  demurrer,  assigning  for  causes,  that  the  plea  amounted 
to  the  general  issue  ;  that  whereas  the  plaintiff  had  declared  on  an 
absolute  and  unqualified  undertaking  that  the  mare  was  sound,  the 
defendant  had  not  confessed  and  avoided  the  same,  nor  had  directly 
denied  such  promise,  but  had  stated  matters  for  the  purpose  of 
qualifying  such  promise,  and  of  showing  that  the  warranty  re- 
mained in  force  only  until  twelve  at  noon  of  the  day  after  the  sale, 
and  was  a  warranty  against  such  unsoundness  only  as  the  plaintiff 
might  discover  within  such  period. 

Crompton,  in  support  of  the  demurrer.  The  plea  attempts  to 
show  that  there  was  a  qualification  of  the  warranty,  and  that  the 
contract  was  different  from  that  declared  upon,  and  it  therefore 
amounts  to  the  general  issue.  [Parke,  B.  The  warranty,  as  set 
out  in  the  declaration,  is  an  absolute  one.  The  plea  admits  the 
statement  in  the  declaration,  but  sets  out  new  facts,  for  the  pur- 
pose of  showing  that  there  was  no  breach  of  contract ;  it  does  not 
deny  a  sale  of  the  horse,  or  the  warranty  that  the  horse  was  sound.] 
On  tlie  warranty  stated  in  the  plea,  there  is  to  be  no  responsibility 
at  all  in  certain  cases,  and  that  is  a  qualification  which  might  have 
been  given  in  evidence  under  the  general  issue.  In  Bywater  v. 
Richardson,  1  Ad.  &  Ell.  508  ;  3  Nev.  &  M.  748,  where  there  was 
a  similar  condition,  Littledale,  J.,  treats  it  as  a  qualified  warranty. 
[Parke,  B.  You  say  that  the  contract  which  would  have  to  be 
proved'  would  vary  from  that  stated  in  the  declaration,  and  there- 


PLEAS    IN    BAR.  483 

fore  might  be  given  in  evidence  under  the  general  issue.]  Yes.  In 
Latham  v.  Eutley.B.  &  Cr.  20  ;  3  D.  &  E.  211,  the  declaration  stated 
a  contract  to  carry  goods  from  London,  and  deliver  them  safely  at 
Dover ;  the  contract  proved  was  to  carry  and  deliver  safely,  fire  and 
robbery  excepted  ;  and  it  was  held  to  be  a  variance.  Here  the  con- 
tract stated  in  the  declaration  is,  that  the  defendant  will  be  generally 
answerable  for  the  unsoundness  of  the  mare ;  but  the  contract 
stated  in  the  plea  is,  that  he  will  not  be  answerable  at  all,  if  the 
act  be  not  done  within  a  given  time.  In  Latham  v.  Eutley, 
Abbott,  C.  J.,  says,  "  The  result  of  all  the  cases  upon  the  subject  is, 
that  if  the  carrier  only  limits  his  responsibility,  that  need  not  be 
noticed  in  pleading  ;  but  if  a  stipulation  be  made  that,  under  certain 
circumstances,  he  sliall  not  be  liable  at  all,  that  must  be  stated." 
[Parke,  B.  The  contract  there  stated  was  a  contract  to  carry  the 
goods  safely,  not  a  limited  contract,  if  the  goods  were  not  affected 
by  fire  or  robbery.  Here  the  contract  alleged  is,  that  the  defend- 
ant undertook  that  the  mare  was  sound :  that  he  is  to  be  responsi- 
ble if  unsound  is  merely  an  inference  from  that.]  Where  a  condition 
merely  limits  the  amount  of  damages,  it  is  true  that  it  need  not  be 
stated  in  the  declaration  :  Clarke  v.  Gray,  6  East,  5C4 ;  but  where 
the  contract,  as  in  this  case,  is  qualified  by  conditions,  it  is  a  vari- 
ance to  state  it  as  absolute  in  its  terms.  In  Howell  v.  Eichards, 
11  East,  633,  it  was  held,  that,  if  a  covenant  for  quiet  enjoyment 
be  restrained  by  any  qualifying  context,  it  must  be  stated,  and  if 
not,  that  the  defendant  might  take  advantage  of  it  under  the  plea 
of  the  general  issue,  as  being  an  untrue  statement  of  the  deed  in 
substance  and  effect.  Tempany  v.  Burnaud,  4  Campb.  20,  and 
Browne  v.  Knill,  2  Brod.  &  B.  395,  are  authorities  to  the  same 
effect.  In  Whittaker  v.  Mason,  2  Bing.  N.  C.  359 ;  2  Scott,  567, 
the  plaintiff  declared  upon  a  contract  of  sale  of  certain  books  ;  the 
defendant  pleaded  that  the  books  were  sold  subject  and  according 
to  the  usage  and  course  of  dealing  observed  among  booksellers  in 
London  ;  to  which  the  plaintiffs  replied  dc  injuria  ;  and  on  demurrer 
to  the  replication,  it  was  held  that  the  plea  in  effect  amounted  to  the 
general  issue.  [Parke,  B.  There  the  plea  set  up  a  different  con- 
tract ;  here  the  plea  does  not  alter  the  consideration  or  the  promise.] 
The  omission  to  state  the  qualification  entirely  alters  the  legal  effect 
of  the  contract.  The  case  is  distinguishable  from  Syms  v.  Chaplin, 
5  Ad.  &  Ell.  634 ;  1  Nev.  &  P.  129,  which  was  an  action  against  a 
coach  proprietor  for  the  loss  of  a  parcel  above  the  value  of  £10  ;  for 
the  omission  to  declare  the  value  of  the  parcel  did  not  qualify  the 
nature  of  the  contract,  but  was  a  matter  which  avoided  it,  and  , 
therefore  required  to  be  specially  pleaded.     The  general  rule  is, 


484  CASES   ON   COMMON-LAW   PLEADING. 

that  contracts  are  entire,  and  it  is  only  an  exception  to  that  rule, 
that  where  a  part  of  the  contract  does  not  affect  the  rest  which  is 
declared  upon,  such  part  need  not  be  stated. 

J.  Henderson,  contra.  The  plea  is  good.  The  truth  of  the  facts 
stated  in  it  is  consistent  w4th  the  contract  alleged  in  the  declara- 
tion. The  defendant  says.  True  it  is  I  promised  that  the  horse  was 
sound,  and  it  turned  out  to  be  unsound,  but  there  were  collateral 
circumstances  which  prevented  your  right  to  sue  from  arising. 
Where,  indeed,  the  plea  discloses  a  contract  different  from  that 
alleged  in  the  declaration,  it  is  bad,  as  amounting  to  the  general 
issue.  The  cases  which  have  arisen  since  the  new  rules  on  mdebi- 
tatus  assumpsit  sliow  that  where,  if  the  plea  be  true,  the  declara- 
tion is  not,  in  that  case  the  plea  is  open  to  demurrer,  as  amounting 
to  the  general  issue.  In  Latham  v.  Eutley,  the  promise  alleged 
was  absolute,  but  the  contract  proved  was  a  qualified  one,  and 
therefore  did  not  support  the  promise  declared  on.  But  where 
there  is  an  absolute  promise,  and  the  defence  is  that  its  efficacy  has 
been  destroyed  by  matters  occurring  subsequently,  those  matters 
must  be  specially  pleaded.  In  Hotham  v.  The  East  India  Com- 
pany, 1  T.  E.  638,  where  there  was  a  covenant  in  a  charter-party, 
that  no  claim  for  short  tonnage  should  be  allowed,  unless  such 
short  tonnage  were  found  and  made  to  appear  on  the  ship's  arrival, 
on  a  survey  to  be  taken  by  four  shipwrights  ;  it  was  held,  that  this 
not  being  a  condition  precedent  to  the  plaintiff's  right  to  recover 
for  short  tonnage,  but  a  matter  of  defence  to  be  taken  advantage  of 
by  the  defendants,  the  not  averring  performance  was -no  ground  for 
arresting  the  judgment.  That  case  resembles  the  present.  It  was 
not  necessary  for  the  plaintiff  to  aver  performance  of  the  condition 
annexed  to  this  warranty  ;  it  is  sufficient  for  him  to  allege  the  con- 
tract and  breach.  The  fact  on  which  the  defendant  relies  is  col- 
lateral to  the  original  contract,  and  therefore  ought  to  be  pleaded 
specially. 

Crompton,  in  reply.  The  contract  as  set  out  in  the  pica  affects 
the  consideration  stated  in  the  declaration,  for  the  plaintiff  is 
bound  to  give  notice  of  the  unsoundness  before  a  specified  time,  in 
order  to  render  it  an  absolute  warranty,  Hotham  v.  The  East 
India  Company  turns  on  the  distinction  between  covenant  and 
assumpsit,  and  on  the  rule  which  is  peculiar  to  the  former,  that  a 
party  need  not  set  out  more  covenants  than  those  of  the  breach  of 
which  he  complains  ;  but  that  is  not  applicable  to  assumpsit.  The 
condition,  which  it  is  not  requisite  to  state,  is  such  a  one  as  does 
not  qualify  the  original  promise.  The  narrow  point  is,  does  this 
plea  affect  the  liability  which  the  defendant  is  under,  upon  the 


PLEAS   IN    BAR.  485 

contract  alleged  in  the  declaration  ?  It  is  sul)mitted  that  it  does  ; 
it  shows  that  he  is  not  absolutely  bound  ;  whereas,  on  the  contract 
as  stated  in  the  declaration,  he  is  so.  Latham  v.  Rutley  is  in 
point.  [Parke,  B.  In  that  case  there  was  no  promise  to  carry 
safely  at  all  events;  here  there  was  an  absolute  warranty  of 
soundness.] 

Parke,  B.  I  am  of  opinion  that  the  plea  is  a  good  plea,  and  that 
the  defendant  is  entitled  to  judgment.  The  declaration  states,  that, 
in  consideration  that  the  plaintiff  would  buy  a  mare  of  the  defend- 
ant, the  defendant  promised  that  she  was  sound.  Then  there  is  a 
special  plea,  which  states,  that  the  mare  was  sent  to  a  repository 
for  the  sale  of  horses,  to  be  sold  according  to  certain  rules,  which 
provided  that  the  warranty  of  soundness  was  to  remain  in  force  up 
to  a  certain  time  only,  unless  notice  of  the  unsoundness  was  in  the 
mean  time  given  ;  and  it  goes  on  to  aver  that  the  sale  toi  ik  place 
subject  to  those  rules,  and  that  no  notice  was  delivered  within  the 
time  specified.  It  appears  to  me  that  such  plea  is  not  bad  as 
amounting  to  the  general  issue.  It  admits  the  contract  and  the 
promise,  but  shows  it  to  have  been  made  subject  to  certain  rules 
which  have  not  been  complied  with.  What  is  the  meaning  of 
those  terms  ?  It  seems  to  me  to  be  this,  that  the  warranty  shall 
be  deemed  to  have  been  complied  with,  unless  a  notice  and 
certificate  shall  be  delivered  to  the  vendor  before  twelve  o'clock 
at  noon  of  the  day  next  after  the  day  of  the  sale.  That  is  not  a 
denial  of  the  warranty,  but  a  mere  condition  annexed  to  it.  No 
notice  and  certificate  were  delivered,  and  therefore  the  contract  is 
to  be  considered  as  complied  with.  If  the  matter  relating  to  the 
notice  had  been  by  way  of  proviso  upon  the  warranty,  it  might 
perhaps  have  been  necessary  to  state  it  in  the  declaration  ;  V)ut 
upon  that  point  I  give  no  opinion.  It  is  enough  to  say  that  every 
word  of  this  plea  is  consistent  with  the  contract  stated  in  the 
declaration. 

Alderson,  B.  The  meaning  of  the  plea  is,  that  there  was  a  sort 
of  conventional  warranty  of  soundness,  and  that  the  warranty  was 
to  be  considered  as  complied  with,  unless  a  notice  and  certificate  of 
imsoundness  were  given  within  a  certain  time,  wliich  was  not  done. 
That  is  not  a  denial  of  the  contract,  as  alleged  in  the  declaration. 
Gurney,  B.,  and  Ptolfe,  B.,  concurred. 

Judgment  for  the  defendant.^ 

1  See  Clarke  v.  Gray.  6  East,  .564 ;  Sharland  v.  Leifchild,  4  C.  B.  533 ;  Weedou  v. 
Woodbridge,  13  Q.  B.  462.  —  Ed. 


486   •  CASES   ON    COMMON-LAW   PLEADING. 

LYALL   V.   HIGGINS. 

In  the  Queen's  Bench.     April,  1843. 

Keported  4  Queen's  Bench  Reports,  528. 

Hence,  where  the  matter  pleaded  turns  on  a  different  mode  of  interpreting 
the  contract,  non-assumpsit  is  the  proper  plea. 

Assumpsit.  The  declaration  (first  count)  stated  that  plaintiffs, 
at  the  time  of  the  making  of  the  promise  after  mentioned,  viz.,  on, 
etc.,  had  engaged  one  Alexander  Christie  to  act  in  the  capacity  of 
collecting  clerk  to  them,  the  said  plaintiffs,  but  were  desirous  of 
having,  and  required,  security  for  the  correctness  of  the  pecuniary 
transactions  of  the  said  A.  C.  as  such  collecting  clerk  with  plaintiffs 
previously  to  employing  A.  C.  in  the  capacity  aforesaid,  whereof 
defendant  then  had  notice  ;  and  thereupon  afterwards,  viz.,  on,  etc., 
in  consideration  that  plaintiffs,  at  the  request  of  defendant  and  of 
one  William  Sands,  would  employ  A.  C.  as  such  collecting  clerk  to 
plaintiffs  as  aforesaid,  defendant  and  W.  S.  then  guaranteed  to 
plaintiff's  the  correctness  of  the  pecuniary  transactions  of  the  said 
A.  C.  with  plaintiffs,  as  such  collecting  clerk  to  plaintiffs  as  afore- 
said, to  the  amount  of  £500,  in  manner  following  :  that  is  to  say, 
defendant  then  undertook  and  promised  plaintiffs  to  be  security  to 
them  to  the  amount  of  £250.  And  the  said  W.  Sands,  etc.  (the 
like  undertaking  by  Sands).  Averment  that  plaintiffs,  relying  on 
the  guarantee,  etc.,  did  thereupon,  to  wit,  on,  etc.,  employ  A.  C.  as 
such  collecting  clerk  to  plaintiff's  as  aforesaid,  and  A.  C.  remained 
and  continued  in  their  employment  as  such  collecting  clerk  for  a 
long  space,  etc.,  viz.,  two  years  then  next  following  ;  that,  while 
A.  C.  so  remained  and  continued,  etc.,  he,  A.  C,  as  such  collecting 
clerk,  collected  and  received  from  divers  persons  divers  debts  and 
sums  of  money  for  and  on  account  of  plaintiffs  and  as  their  moneys, 
to  a  large  amount,  viz.,  to  the  amount  of  £20,000  ;  yet  A.  C.  did 
not  correctly,  honestly,  and  faithfully  account  for  or  pay  the  said 
moneys  to  plaintiffs,  but,  on  the  contrary,  whilst  he  was  such 
collecting  clerk  to  plaintiffs  as  aforesaid,  wrongfully  converted  and 
disposed  of  a  great  part,  to  wit,  £500,  part  of  the  said  moneys  so 
by  him  collected  and  received  as  such  collecting  clerk  to  plaintiffs 
as  aforesaid,  to  his  own  use ;  and  thereby  the  pecuniary  transac- 
tions of  A.  C.  with  plaintiffs,  as  such  collecting  clerk  as  aforesaid, 
became  and  were  incorrect  and  deficient  to  that  amount ;  of  all 
which,  etc. :  notice  to  defendant,  on,  etc.,  and  request  to  him  by 
plaintiffs  to  pay  them  the  £250.     Breach,  non-payment. 


PLEAS    IN    BAR.  487 

Plea  2.  That,,  before  defendant  made  the  promise  in  the  first 
count  mentioned, %nd  before  plaintiffs  desired  or  required  security 
for  the  correctness,  etc.,  as  in  that  count  mentioned,  viz.,  on,  etc., 
plaintiffs  and  A.  C.  had  agreed  together  that  plaintiff's  should 
employ  A.  C,  and  that  he  should  serve  them,  in  the  said  capacity 
of  collecting  clerk  to  the  plaintiff's  as  in  the  first  count  mentioned, 
for  certain  commission  and  reward  to  A.  C.  in  that  behalf ;  which 
agreement  was  in  full  force  and  effect,  unexpired  and  undetermined, 
at  the  said  time  of  making  the  defendant's  promise  in  that  count 
mentioned,  and  also  at  and  during  the  period  and  times  therein 
mentioned  during  which  A.  C.  remained  and  continued  in  the 
employ  of  plaintiffs  as  such  collecting  clerk  to  them  as  aforesaid, 
as  in  the  said  first  count  mentioned.  And  that  plaintiffs  did  not 
desire  or  require  security  for  the  correctness  of  the  pecuniary 
transactions  of  the  said  A.  C.  as  such  collecting  clerk  as  aforesaid, 
nor  did  defendant  promise  as  in  the  said  count  mentioned,  until 
after  plaintiff's  and  A.  C.  had  completely  made  and  concluded  the 
said  agreement  between  them  above  mentioned.     Verification.^ 

Special  demurrer. 

Bain,  for  the  plaintiffs.  The  second  plea  does  not  confess  and 
avoid,  and  amounts,  at  most,  to  an  argumentative  denial  of  the 
consideration. 

Erie,  contra.  The  second  plea  is  good  :  it  supplies  the  fact,  not 
disclosed  by  the  declaration,  that  the  plaintiff's  had  agreed  to 
employ  Christie  before  they  desired  security  from  the  defendant ; 
and  their  doing  what  they  were  already  bound  to  do  was  no  con- 
sideration for  the  defendant's  promise.  Stilk  v.  Meyrick,  2  Camp. 
317;  s.  c.  6  Esp.  N.  P.  C.  129.  See  England  v.  Davidson,  11 
A.  &  E.  856 ;  Jones  v.  Waite,  5  New  Ca.  341,  judgments  of 
Patteson,  J. ,2  Lord  Abinger,^  and  Lord  Denman,  C.  J.^  [Lord 
Denman,  C.  J.  Your  plea  introduces  a  different  agreement  between 
the  plaintiff's  and  defendant  from  that  stated  in  the  declaration. 
Ought  that  to  be  specially  pleaded  ?]  The  plea  only  avoids  the 
contract  declared  on.  It  alleges  that  such  a  contract  was  in  fact 
made,  but  the  plaintiff's  were  bound  already.  [Patteson,  J.  You 
do  not  deny  the  promise,  or  the  fact  stated  as  the  consideration, 
but  contend  that  you  now  find  the  agreement  to  have  been 
nudum  pactum ;  that,  although  the  plaintiffs  professed  that  they 
would  employ  Christie  at  the  defendant's  request,  they  did  not  do 
it  on  his  request,  being  already  bound.] 

Bain,  in  reply. 

1  Only  so  mucli  of  the  case  is  given  as  relates  to  the  second  plea.  —  Ed. 

2  Page  351.  8  Page  356.  *  Pages  358,  359. 


488  CASES    ox   COMMON-LAW   PLEADING. 

Lord  Denman,  C.  J.  I  am  of  opinion  that  the  plaintiffs  are 
entitled  to  judgment  on  the  second  plea.  It  sets  np  a  different 
consideration  from  that  which  the  declaration  alleges;  and  the 
matter  might  have  been  given  in  evidence  on  non-assumpsit.  It  is 
not  a  confession,  but  adds  something  to  the  statement  in  the 
declaration,  which  makes  a  different  contract. 

Patteson,  J.  The  second  plea  is  a  denial  of  the  alleged  con- 
sideration, namely,  that  the  plaintiffs,  at  the  defendant's  request, 
would  employ  Christie.  It  is  now  settled  that  the  proper  mode  of 
traversing  a  consideration  is  by  plea  of  non-assumpsit.  It  has  been 
suggested  that  the  plaintiffs  might  have  previously  engaged  Christie, 
and  yet  that  their  promise  to  employ  him  in  future  might  have 
been  at  the  defendant's  request.  But,  if  it  turns  out  on  the  plead- 
ing that  they  did  not  agree  to  employ  Christie  at  the  defendant's 
request,  but  had  so  agreed  before  it  was  made,  that  is  a  denial  of 
his  being  employed  at  the  request  of  the  defendant.  The  con- 
sideration, therefore,  is  denied  ;  and  the  plea  should  have  been 
non-assumpsit. 

Williams,  J.  The  second  plea  turns  only  on  a  different  mode  of 
interpreting  the  contract  from  that  adopted  in  the  declaration.  The 
plea  should  have  been  non-assumpsit,  and  the  defence  under  it 
would  have  been  variance. 

Judgment  for  plaintiffs  on  the  second  plea.^ 


J  SIEVEKING   AND   ANOTHER   v.  BUTTON. 

In  the  Common  Pleas.     1846. 
Reported  3  Common  Bench  Reports,  33L 

Incompatibility  between  the  contract  declared  on  and  that  pleaded  is  the 
test. 

Assumpsit.  The  first  count  of  the  declaration  stated  that  the 
plaintiff's,  at  the  request  of  the  defendant,  agreed  to  supply  the  de- 
fendant, and  the  defendant  ordered  of  the  plaintiffs,  divers  large 
quantities  of  wool,  to  be  purchased  by  him  upon  certain  terms,  that 
is  to  say,  etc.,  that  in  consideration  thereof,  and  that  the  plaintiffs, 
at  the  like  request  of  the  defendant,  then  promised  the  defendant 
to  deliver  the  said  quantities  of  goods  to  the  defendant,  according 
to  the  said  contract,  the  defendant  then  promised  the  plaintiffs  to 
accept  the  said  goods,  and  to  pay  for  the  same  according  to  the 

1  Sutherland  v.  Pratt,  11  M.  &  W.  296;  Raikes  v.  Todd,  8  A.  &  E.  854;  "Wade  v. 
Simeon,  2  C.  B.  548;  Breech  v.  White,  12  A.  &  E.  670;  Weedon  v.  Woodbridge,  13 
Q.  B.  481,  accord ;  Passenger  v.  Brookes,  1  B.  N.  C.  587,  contra.  —  Ed. 


PLEAS    IN    BAR.  489 

terms  of  the  said  contract.  Averment,  that  the  plaintiffs  had 
always  been  ready  and  willing,  and  afterwards,  to  wit,  on,  etc., 
tendered  and  ofl'ered  to  deliver  the  said  goods  to  the  defendant, 
according  to  the  terms  of  the  said  contract,  etc.  Breach,  that  the 
defendant  refused  to  accept  them. 

Plea,  that,  at  the  time  of  the  defendant's  ordering  the  said  quan- 
tities of  wool,  and  making  the  said  promise,  as  in  the  first  count  of 
the  declaration  alleged,  the  plaintiffs  produced  and  showed  to  the 
defendant  a  certain  sample  of  the  said  wool,  and  then  promised  the 
defendant  to  deliver  the  said  quantities  of  wool  to  the  defendant, 
and  that  the  whole  of  the  said  quantities  of  wool  were  equal  in 
quality  and  description  to  the  said  sample  ;  that  the  defendant 
then  ordered  the  said  quantities  of  wool,  and  made  the  said 
promise,  as  in  the  said  first  count  mentioned,  on  the  faith  and 
terms,  and  in  consideration  of  the  said  promise  of  the  plaintiffs,  and 
not  otherwise ;  but  that  the  said  quantities  of  wool,  at  the  time 
when  they  were  so  offered  and  tendered  for  delivery  by  the  plain- 
tiff's as  in  the  said  first  count  mentioned,  were  not  equal  in  quality 
and  description  to  the  said  sample,  but,  on  the  contrary  thereof,  the 
same  were  of  a  very  inferior  and  bad  and  indifferent  quality  and 
description,  and  of  much  less  value,  and  of  no  use  or  value  to  the 
defendant ;  whereupon  and  wherefore  the  defendant  then  refused 
to  accept  the  said  wool,  or  pay  for  the  same ;  as  he  lawfully  might, 
etc.     Verification.  ^ 

To  this  plea  the  plaintiffs  demurred  specially,  on  the  ground, 
amongst  others,  that  it  amounted  to  non-assumpsit.  ♦ 

Dowling,  Serjt.,  in  support  of  the  demurrer.  The  declaration 
alleges  an  absolute  contract  on  the  part  of  the  defendant  to  receive 
the  wool,  without  any  condition  as  to  quality,  or  any  specific  de- 
scription. The  plea  alleges  that  the  contract  was  for  a  sale  of 
wool,  with  a  warranty  that  the  bulk  was  equal  to  sample :  that 
introduces  a  qualification  into  the  contract,  and  amounts  to  a  mere 
denial  of  the  contract  declared  on.  Morgan  v.  Pebrer,  3  N.  C.  457 ; 
4  Scott,  230  ;  Nash  v.  Breeze,  11  M.  &  W.  352;  Heath  v.  Durant, 
12  M.  &  W.  438. 

Channell,  Serjt,  contra.  Had  this  been  pleaded  to  a  count  in 
indebitatus  assumpsit  for  goods  sold  and  delivered,  or  goods  bar- 
gained and  sold,  the  plea  would  undoubtedly  have  been  open  to 
the  objection  suggested.  But  the  difficulty  here  arises  from  the 
new  rules,  which  provide  that  the  plea  of  non-assumpsit  shall 
operate  only  as  a  denial  in  fact  of  the  express  contract  or  promise 
alleged,  or  of  the  matter  of  fact  from  which  the  contract  or  promise 
alleged  may  be  implied  in  law.     This  plea  does  not  deny  the  ex- 


490  CASES   ON    COMMON-LAW    PLEADING. 

press  contract  alleged  in  the  declaration  ;  on  the  contrary,  it  admits 
it ;  and  it  seeks  to  justify  the  refusal  to  accept  the  wool,  by  show- 
ing that  it  differed  in  quality  from  that  which  the  plaintiffs 
contracted  to  deliver.  [Maule,  J.  The  contract  stated  in  the 
declaration  is  for  the  delivery  of  wool  of  a  merchantable  quality. 
Tindal,  C.  J.  Upon  non-assumpsit  the  plaintiffs  would  be  non- 
suited, if  they  proved  a  contract  other  than  that  alleged.  Cress- 
well,  J.,  referred  to  Parker  v.  Palmer,  4  15.  &  Aid.  387.  Maule,  J. 
If  issue  were  taken  on  the  tender,  the  plaintiffs  would  fail  unless 
they  proved  a  tender  of  wool  of  the  quality  and  description 
ordered.]  The  plea,  at  all  events,  complies  with  the  spirit  of  the 
new  rules.  [Maule,  J.  The  defendant'should  certainly  be  allowed 
to  plead  this  defence,  if  it  is  not  open  to  him  under  non-assumpsit.] 

Bowling,  Serjt.,  in  reply.  The  plea  in  question  clearly  amounts 
to  no  more  than  a  denial  of  the  contract  alleged  in  the  declaration. 
[Tindal,  C.  J.  The  contract  set  up  by  the  plea  is  not  necessarily 
incompatible  with  that  stated  in  the  declaration.]  It  is  difficult  to 
see  how  the  two  could  coexist.  [Maule,  J.,  referred  to  Street  v. 
Blay,  2  B.  &  Ad.  456.] 

The  court,  after  some  deliberation,  were  about  to  pronounce  judg- 
ment in  favor  of  the  plea,  when  Dowling,  Serjt.,  prayed  leave  to 
withdraw    the    demurrer ;   which   was    granted,   upon    the    usual 

terms. 

Eule  accordingly.^ 

/  (b)    General  Assumpsit. 

HAYSELDEN   v.    STAFF. 

In  the  King's  Bench.     1836. 

Reported  5  Adolphds  &  Ellis,  153. 

Pleas  amounting  to  the  general  issue  and  pleas  disclosing  matter  admissible 
under  the  general  issue  distinguished. 

Indebitatus  assumpsit  for  (among  other  considerations)  the  price 
and  value  of  work  done,  and  materials  provided  for  the  same ; 
promise  to  pay  on  request. 

Plea  (among  others)  as  to  non-payment  of  £1  0.?.  9(7.,  parcel  of 
the  above,  that  the  said  work  and  materials  were  work  done  and 
materials  provided  for  the  same  by  the  plaintiff  for  the  defendant 
in  and  about  the  endeavoring  to  prevent  a  certain  chimney  from 
smoking,  and  upon  the  terms,  agreement,  and  understanding  that 

1  See  Parker  v.  Pahner,  4  T5.  &  Al.  387 ;  Sharlaud  v.  Leifchild,  4  C.  B.  529  ; 
Weedou  i;.  Woodbridge,  13  Q.  13.  462.  —  Ed. 


PLEAS    IN    BAK.  491 

the  plaintiff  should  not  be  paid  for  the  said  work  and  materials,  or 
any  part  thereof,  unless  he  should  succeed  in  preventing  the  said 
chimney  from  so  smoking  as  aforesaid.  Averment,  that  plaintiff 
hath  not  succeeded,  etc.     Verification. 

Demurrer,  assigning  for  causes,  that  the  plea  amounts  to  the 
general  issue,  and  is  argumentative,  and  an  evasive  and  indirect 
denial  of  the  cause  of  action,  and  does  not  sutiiciently  traverse,  or 
confess  and  avoid  it. 

The  case  was  now  argued.^ 

Busby,  for  the  plaintiff.  The  plea,  instead  of  confessing  the  con- 
tract, alleges  matter  to  show  that  it  never  was  made  as  alleged  in 
the  declaration ;  it  is  therefore  bad,  and  falls  within  the  principle 
of  the  cases  collected  in  Com.  Dig.  Pleader  (E.  13),  and  (E.  14). 
It  is  true  that  not  only  matter  in  confession  and  avoidance  may  be 
specially  pleaded,  but  also  matter  of  law  which  may  be  given  in 
evidence  on  the  general  issue.  In  Carr  v.  Hinchliff,  4  B.  &  C. 
547,  the  plea  was  upheld  on  both  these  princijdes.  But  the 
present  case  does  not  fall  within  either.  The  case  is  the  stronger, 
because  here  the  plea  goes  to  a  part  only  of  the  consideration ;  and 
therefore  the  unnecessary  prolixity,  which  is  the  fault  against 
which  the  rule  was  intended  to  guard,^  is  aggravated. 

Martin,  contra.  The  plea  is  good,  whether  considered  with  refer- 
ence to  the  new  rules,  or  independently  of  them.  The  declaration 
alleges  a  performance  of  work  and  supply  of  materials  at  the  de- 
fendant's request ;  and  from  the  fact  so  alleged  it  seeks  to  raise  a 
legal  implication  of  a  promise.  The  general  issue  would  amount 
to  a  denial  of  that  fact,  and  of  nothing  more;^  but  thatV^act  is  here 
admitted  ;  the  plea  therefore  suggests  a  defence  which  the  general 
issue  would  not  raise.  It  is  assumed  on  the  other  side  that  a  plea  in 
confession  and  avoidance,  to  a  declaration  in  indebitatus  assu7)ij)sit, 
must  confess  the  debt ;  whereas  it  need  only  confess  the  fact 
alleged  as  the  ground  of  implying  the  promise.  That  being  con- 
fessed, a  primd  facie  right  in  the  plaintiff  is  admitted,  which  the 
defendant  is  to  avoid  by  new  matter.  Thus,  in  the  new  rules  of 
pleading,  it  is  said  *  that,  in  indebitatus  assumpsit  for  goods  sold 
and  delivered,  non-assumpsit  denies  merely  the  sale  and  delivery  in 
point  of  fact.  Here  the  plea  certainly  shows  that  the  contract  was 
conditional ;  but  it  lay  upon  the  defendant  to  allege  the  condition 
and  deny  its  performance,  as  he  could  not  deny  the  substantive 

1  Before  Lord  Deninan,  C.  J.,  Littlodale,  Patteson,  and  Williams,  JJ. 

2  See  Warner  v.  Wainsfonl,  Hob.  127  (ed.  5). 

8  Rule,  H   4  W.  4,  Assumpsit,  1,  5  B.  &  Ad.  vii. 
*  5  B.  &  Ad.  vii.  viii. 


492  CASES    ON    COMMON-LAW    PLEADING. 

fact.     [Littledale,  J.     Certainly  the  new  rules  so  far  treat  a  con- 
tract, with  a  condition  and  without  it,  as  the  same  thing,  that  they 
do  not  allow  separate  counts  on  each,]  ^     The  cases  given  in  the  new 
rules,  under  Assumpsit  3,^  show  that  the  special  plea  need  not 
confess    the   debt,  but   only  the  fact  which  primoi  facie  raises   a 
promise.     Thus,  coverture,  illegality  of  consideration,  unseaworthi- 
ness, misrepresentation,  concealment,  are  all  matters  which  show 
that  the  debt  never  arose  ;  yet  they  are  to  be  specially  pleaded, 
because  they  do  not  deny  the  fact  alleged  as  the  foundation  of  the 
debt.     In  Potts  v.  Sparrow,  1  New  Ca.  594,  it  was  held  that  an 
objection  to  an  action  of  assumpsit  for  the  costs  of  preparing  an 
illegal  agreement  could  not  be  taken  on  a  plea  of  non-assumpsit, 
though  it  was  urged  that  the  new  rules  applied  only  where  the 
illegality  objected  to  was  in  the  contract,  the  breach  of  which  was 
the  subject  of  the  action  itself.    Edmunds  v.  Harris,  2  A.  &  E.  414  ; 
s.  c.  4  N.  &  M.  182,  goes  much  beyond  the  present  case.     [Lord 
Denman,  C.  J.     If  that  decision  be    correct,   no   doubt  it  is  an 
authority  in  your  favor ;  but  some  of  the  other  cases  put  by  you 
are  instances  of  facts  dehors  the  contract,  and  where,  but  for  such 
facts,  there  would  be  a  good  contract.     Perhaps  the  rule  as  to 
goods  sold  and  delivered  is  not  expressed  so  correctly  as  it  might 
be.]     Here  that  has  been  done  for  the  defendant  upon  which,  but 
for  the  matter  alleged  in  the  plea,  the  plaintiff  would  have  an 
implied  right  to  sue.     [Patteson,  J.     It  has  been  said  that  the 
"  denial  of  the  sale  and  delivery  in  point  of  fact "  means,  of  the 
sale  and  delivery  laid  in  the  declaration ;  that  is,  a  sale  and  deliv- 
ery to  be  paid  for  on  request;  and  that,  if  it  appear  that  the  pay- 
ment was  to  be  on  a  future  day,  or  upon  condition,  the  sale  and 
delivery  alleged  are  negatived ;  and  that  therefore  such  a  defence 
amounts  to  the  general  issue.]     The  plea  here,  correctly  speaking, 
does  not  show  that  the  plaintiff  was  to  be  paid  only  if  a  certain 
event  occurred,  but  that  his  right  was  to  be  defeated  in  case  of  the 
non-occurrence  of  the  event :  that  is  not  a  traverse,  but  new  matter. 
In  Waddilove  V.  Barnett,  2  New  Ca.  538,  the  declaration  was  in 
assumpsit  for  use  and  occupation ;  and  it  was  held  that  the  de- 
fendant could  not,   under  the  general  issue,  show  that  after  the 
rent  became  due  he  had  received  notice  from  a  party  to  whom  the 
plaintiff  had  mortgaged  the  premises  before  the  occupation  com- 
menced,  and  that  he  had    paid  such  party    accordingly.      [Lord 
Denman,  C.  J.     There  the  defence  went  to  show  that  the  plaintiff 
was  not  the  real  owner.]     That  could  not  have  been  the  principle 

1  R,.  H.  4  W.  4,  General  Rules  and  Regulations,  5,  5  B.  &  Ad.  ii. 

2  5  B.  &  Ad.  viii. 


PLEAS    IN    BAR.  493 

of  the  decision ;  for  such  a  principle  would  also  apply  to  rent  be- 
coming due  after  the  notice  from  the  mortgagee ;  whereas  it  was 
held  tliat,  as  to  this,  the  defence  might  be  shown  under  non- 
assumpsit.  The  principle  was  that,  as  to  the  last-mentioned  rent, 
the  occupation  by  the  sufferance  and  permission  of  the  plaintiff, 
which  was  the  fact  raising  the  contract,  was  negatived  by  the 
evidence :  as  to  the  rent  due  before  the  notice,  such  occupation  was 
not  negatived  but  admitted  ;  and  therefore  matter  showing  that, 
though  the  fact  raising  the  contract  was  true,  still  the  debt  had 
not  arisen,  was  held  not  to  be  admissible  in  proof  under  non- 
assumpsit. 

Then,  independently  of  the  new  rules,  this  matter  might  be  spe- 
cially pleaded.  It  is  necessary  only  that  a  special  plea  of  this  kind 
should,  as  this  does,  give  color  to  the  plaintiff.  Stephen  on  Plead- 
ing, 421  (ed.  3).  Carr  v.  Hinchliff,  4  B.  &  C.  547,  shows  this,  and 
proves  that  a  plea  does  not  necessarily  amount  to  the  general  issue, 
because  the  defence  which  it  suggests  might  have  been  shown 
under  the  general  issue.  Bird  v.  Higginson,  2  A.  &  E.  696,  is  to  the 
same  effect.  [Busby.  The  court  did  not  expressly  decide  that 
point.  Littledale,  J.  They  gave  judgment  for  the  defendant, 
though  the  objection  was  assigned  on  special  demurrer  to  the  plea. 
In  special  actions  on  the  case  for  disturbance,  every  one  knows 
that  the  answer  may  be  pleaded  specially.]  And  that,  whether  it 
be  by  way  of  confession  and  avoidance,  or  by  way  of  raising  a 
question  of  law.  [Littledale,  J.  It  is  said  in  Com.  Dig.  Pleader 
(E.  14)  that  this  objection  should  be  taken  by  motion,  not  by 
demurrer.^     That  seems  not  to  be  considered  law  now.^] 

Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  on  a  subsequent  day  of  this  term  (June 
13th),  delivered  the  judgment  of  the  court.  After  stating  the 
declaration,  the  plea,  and  the  demurrer,  and  causes  assigned,  his 
Lordship  proceeded  as  follows  :  — 

It  must  be  first  considered,  whether  the  defence  set  up  in  the 
plea  could  be  given  in  evidence  under  the  general  issue  of  non- 
assumpsit  ;  because,  if  it  could  not,  then  there  is  no  ground  for  the 
demurrer. 

There  is  no  doubt  but  it  might  be  so  before  the  new  rules,  be- 
cause not  only  might  the  fact  of  the  actual  contract  itself  be 
denied,  but  also  it  might  be  proved  that  it  was  void  in  law,  or  that 

1  Citing  Warner  v.  Wainsford,  Hob.  127  (ed.  5),  and  Ward  and  Blunt's  Case,  1 
Leon.  178. 

2  See  Stephen  on  Pleading,  421  (ed.  3). 


494  CASES    ox    COMMON-LAW   PLEADING. 

tlie  contract  itself  had  been  performed,  or  that  the  defendant  was 
excused  from  the  performance  of  it  by  many  other  circumstances. 

But,  since  the  new  rules  (and  which  have  the  force  and  efiect  of 
an  act  of  Parliament)  in  actions  of  assumpsit,  "  the  plea  of  non- 
assumpsit  shall  operate  only  as  a  denial  in  fact  of  the  express  con- 
tract or  promise  alleged,  or  of  the  matters  of  fact  from  which  the 
contract  or  promise  alleged  may  be  implied  by  law."  In  actions 
of  assumpsit  for  goods  sold  and  delivered,  the  plea  of  non-assumpsit 
will  operate  as  a  denial  of  the  sale  and  delivery  in  point  of  fact. 
And  "  in  every  species  of  assumpsit  all  matters  in  confession  and 
avoidance,  including  not  only  those  by  way  of  discharge,  but  those 
which  show  the  transaction  to  be  either  void  or  voidable  in  point 
of  law,  on  the  ground  of  fraud  or  otherwise,  shall  be  specially 
pleaded." 

One  of  the  general  objects  of  these  new  rules  was  to  compel  a 
defendant  to  put  his  defence  specially  upon  the  record.  And  in 
conformity  with  this  object  the  case  of  Edmunds  v.  Harris, 
2  A.  &  E.  414 ;  s.  c.  4  N.  &  M.  182,  was  decided.  It  was  an  action 
of  debt  for  goods  sold  and  delivered,  to  be  paid  for  on  request,  and 
whicli  as  to  this  is  the  same  thing  as  indebitatus  assumpsit;  to 
wliich  there  was  a  plea  of  never  indebted  ;  and  it  appeared  on  the 
trial  that  the  goods  were  sold  on  a  credit  which  had  not  expired 
when  the  action  was  brought ;  and,  on  a  question  whether  this 
defence  was  admissible  on  the  general  issue,  the  Court  of  King's 
Bench  held  it  was  not,  and  that  it  ought  to  have  been  specially 
pleaded,  and  that  it  was  one  of  the  cases  which  the  new  rules  were 
framed  to  avoid.  But  that  case  was  doubted  in  Taylor  v.  Hilary, 
1  Cr.,  M.  &  E.  741 ;  s.  c.  5  Tyrwh.  373,  on  the  ground  that,  if  the 
time  of  credit  has  not  expired,  the  plaintiff  proves  a  different  con- 
tract from  that  which  he  has  stated  in  the  declaration,  which  was 
to  pay  on  request.  And  so  also  in  Knapp  v.  Harden,  1  Gale,  47, 
Parke,  B. ,  considered  it  as  doubtful  whether  Edmunds  v.  Harris, 
supra,  was  properly  decided.  We  think,  therefore,  that  the  case 
of  Edmunds  v.  Harris,  supra,  cannot  be  considered  as  a  binding 
authority  ;  and,  if  not,  as  the  defence  set  up  on  this  record  shows 
a  diHerent  contract  from  that  which  is  stated  in  the  declaration, 
inasmuch  as  the  contract  stated  in  the  plea  is  that  the  money 
should  be  paid  on  a  certain  condition  which  has  not  been  per- 
formed, it  is  not  a  contract  to  pay  upon  request ;  and  therefore  the 
defence  might  be  gone  into  upon  the  general  issue. 

And  in  the  case  of  Waddilove  v.  Barnett,  2  New  Ca.  538,  it  was 
held,  in  an  action  for  use  and  occupation,  that,  under  the  issue  of 
non-assumpsit,  the   defendant   might   give   in   evidence  that  the 


PLEAS    IN    BAR.  495 

plaintiff  bad  mortgaged  the  premises  before  the  defendant  came 
into  the  occupation,  and  that  the  mortgagee  had  given  notice  to  the 
defendant  not  to  pay  the  phiintiff'  any  rent  becoming  due  after  such 
notice.  And  this  was  determined  by  the  court  after  considering 
the  efifect  of  the  new  rules. 

But,  though  the  defence  might  be  gone  into  under  the  general 
issue,  it  does  not  necessarily  follow  that  the  defence  may  not  be 
specially  pleaded  on  the  record. 

In  the  case  of  Carr  v.  Hinchliff,  4  B.  &  C.  547,  a  defence  was  put 
upon  the  record,  which,  it  was  admitted,  might  have  been  gone  into 
upon  the  general  issue,  and  yet  allowed  to  be  a  good  plea.  It  was 
an  action  for  goods  sold  and  delivered ;  and  the  plea  was  that  the 
goods  were  sold  by  a  third  person  as  the  agent  of  the  plaintiff,  with  the 
proper  averments  of  want  of  knowledge,  etc.;  and  then  the  defend- 
ant set  off  a  debt  due  from  that  third  person.  The  question  was 
much  considered  in  that  case ;  but  there  was,  in  the  first  instance, 
a  complete  contract  admitted  by  tlie  plea  of  the  prima  facie  liability 
of  the  defendant  to  the  action,  because,  independently  of  the  set-oft', 
the  defendant  would  have  been  liable ;  there  was  therefore  a  con- 
fession of  the  contract  stated  by  tlie  plaintiff;  but  the  plea  stated 
matters  which  avoided  it  so  far  as  to  exonerate  the  defendant  from 
the  performance  of  it. 

There  is  a  great  distinction  between  the  case  of  a  plea  which 
amounts  to  the  general  issue,  and  a  plea  which  discloses  matter 
which  may  be  given  in  evidence  under  the  general  issue.  Under 
the  latter,  as  has  been  observed  in  the  earlier  part  of  this  judgment, 
the  various  things  enumerated  may  be  given  in  evidence  under  the 
general  issue,  independently  of  any  of  the  new  rules ;  but  it  is 
incorrect  language  to  say  that  these  things  amount  to  the  general , 
issue  :  they  only  defeat  the  contract ;  but  what,  in  correct  language, 
may  be  said  to  amount  to  the  general  issue  is,  that,  for  some  reason 
specially  stated,  the  contract  does  not  exist  in  the  form  in  which  it 
is  alleged,  and,  where  that  is  the  case,  it  is  an  argumentative  denial 
of  the  contract,  instead  of  being  a  direct  denial ;  and  which,  accord- 
ing to  the  correct  rule  of  pleading,  is  not  allowed. 

The  allegation  in  the  declaration  is  that  the  defendant  is  indebted 
for  work  and  labor  and  materials ;  and  that,  being  so  indebted,  he 
promised  to  pay  on  request.  The  plea  does  not  confess  that  the 
defendant  was  indebted  at  all ;  it  admits  that  work  was  done,  and 
materials  were  found  and  provided :  but,  instead  of  confessing  that 
any  debt  was  created  by  that,  and  showing  anything  to  avoid  it, 
he  says  that  no  money  was  to  be  paid  unless  the  chimney  was  cured 
of  smoking,  which  was  not  done ;  and  which  is  really  saying,  in  the 


496  CASES    ON    CO.MMON-LAW    PLEADING. 

most  distinct  terms,  that  no  debt  ever  arose,  and  therefore  falls 
completely  within  the  meaning  of  what  may  be  termed  an  argu- 
mentative denial  of  the  debt. 

In  Solly  V.  Neish,  2  C.  M.  &  R.  355  ;  s.  c.  5  Tyrwh.  625  ;  1  Gale, 
227,  the  declaration  w^as  for  money  had  and  received.  The  defend- 
ant pleaded  that  the  money  was  the  proceeds  of  goods  pledged  to 
the  defendant,  with  a  power  of  sale,  by  persons  who  were  allowed 
by  the  plaintiffs  to  hold  the  goods  as  their  own,  and  which,  in  fact, 
were  the  property  of  those  persons  and  the  plaintiff's,  and  that 
the  defendant  was  willing  .to  set  off  against  the  proceeds  of  the 
goods  the  advances  made  on  them.  There  were  subsequent  plead- 
ings which  led  to  a  demurrer.  The  court,  though  they  gave  judg- 
ment for  the  defendant,  said  the  plea  would  be  bad  on  a  special 
demurrer.  In  Gardner  v.  Alexander  the  declaration  was  for  goods 
bargained  and  sold ;  the  defence  was  that  they  were  sold  under  a 
special  contract  that  they  should  be  shipped  within  the  current 
month  and  landed  in  London  within  a  given  time,  which  was  not 
done.  On  an  application  to  plead  several  matters,  the  question 
was,  whether  tr*^  facts  could  have  been  given  in  evidence  under 
the  general  issue,  or  whether  it  was  necessary  to  plead  them  specially. 
The  Court  of  Common  Pleas  said  it  was  unnecessary  to  plead  them ; 
the  special  contract  might  be  given  in  evidence  under  the  general 
issue.  And  in  Cousins  v.  Paddon,  2  C.  M.  &  R.  547  ;  s.  c.  5  Tyrwh. 
535,  in  the  Exchequer,  Michaelmas  Term,  1835,  it  was  held  that,  in 
debt  for  goods  sold  and  delivered,  and  work  and  labor,  the  defend- 
ant may  give  in  evidence,  on  the  general  issue  of  never  indebted, 
that  the  goods  were  worthless  and  the  work  useless. 

Upon  the  whole,  therefore,  we  are  of  opinion  that  the  plea  now 
^before  us  cannot  be  supported,  and  that  there  must  be  judgment 
for  the  plaintiff.  Judgment  for  the  plaintiff. 

III.     EEPLICATIOX  DE   INJURIA   AXD   SPECIAL      . 
TRAVERS. 

A.  thus  complains  of  B.,  "  B.  hit  me." 

B.  answers,  "  I  did  hit  you,  but  you  hit  me  first "  {son 
assault  demesne). 

A.  replies,  "i)e  injuria  sua  propria  absque  tali  causal 
The  defendant  committed  the  said  trespass  ^'  Of  his  own 
wrong,  without  such  cause  "  as  the  defendant  alleges. 

"Of  the  traverse  d'e  injuria.  —  There  is  another  species  of 
traverse,  which  varies  from  the  common  form,  which,  though  cou- 


PLEAS   IN    BAR.  497 

fined  to  particular  actions,  and  to  a  particular  stage  of  the  pleadings, 
is  of  frequent  occurrence.  It  is  the  traverse  de  injuria  sua  irropria, 
absque  tali  caicsa,  or  (as  it  is  more  compendiously  called)  the  traverse 
de  injuria.  It  always  tenders  issue  ;  but,  on  the  other  hand,  differs, 
like  many  of  the  general  issues,  from  the  common  form  of  a  traverse, 
by  denying  in  general  and  summary  terms,  and  not  in  the  words 
of  the  allegation  traversed."  Stephen,  Pleading,  Andrews'  1st  ed. 
241. 

"  As  the  general  issue  allowed  the  defendant  to  deny  by  a  brief 
formula  the  material  averments  of  the  plaintiff's  declaration,  so  this 
species  of  traverse,  which  occurs  only  as  a  replication,  gave  the 
plaintiff  a  similar  privilege  in  certain  cases,  with  respect  to  the  de- 
fendant's plea."     Perry,  Pleading,  252. 

The  uses  of  the  replication  de  injuria  may  be  gathered  from  the 
following  pages. 


/ 


(a)  Replication  de  Injuria. 

EDWARD   CROGATE'S   CASE. 

In  the  King's  Bench.     1608. 

Reported  in  8  Reports,  66, 

The  qualities  of  the  replication  de  injuria  stated. 

Edward  Crogate  brought  an  action  of  trespass  against  Eobert 
Marys,  for  driving  his  cattle  in  Town-Barningham,  in  Norfolk,  etc. 
The  defendant  pleaded  that  a  house  and  two  acres  in  Bassingham, 
in  the  said  county,  were  parcel  of  the  manor  of  Thurgarton,  in  the 
same  county,  and  demised,  and  demisable,  etc.,  by  copy,  etc.,  in  fee- 
simple,  etc.,  according  to  the  custom  of  the  manor,  of  which  manor 
William,  late  Bishop  of  Norwich,  was  seised  in  fee  in  the  right  of 
his  bishopric,  and  prescribed  to  have  common  of  pasture  for  him 
and  his  customary  tenants  of  the  said  house,  and  two  acres  of  land 
in  magna  pecia  ijasturcc  vncnV  Bassingham  common,  ^j?'o  omnibus 
averiis,  etc.,  omni  tempore  anni,  and  the  said  bishop,  at  such  a  court, 
etc.,  granted  the  said  house  and  two  acres,  by  copy,  to  one  William 
Marys,  to  him  and  his  heirs,  etc.  And  that  the  plaintiff  put  his 
said  cattle  in  the  said  great  piece  of  pasture,  wherefore  the  defend- 
ant, as  servant  to  the  said  William,  and  by  his  commandment, 
molliter  drove  the  said  cattle  out  of  the  said  place,  where  the  said 
William  had  common  in  prced'  villain  de  Town-Barningham,  adjoin- 
ing to  the  said  common  of  Bassingham,  etc.     The  plaintiff  replied 

32 


498  CASES    ON    COMMON-LAW   PLEADING. 

cle  injuria  sua  jJropria  absque  tali  causa.  Upon  which  the  defend- 
ant demurred  in  law.  And  it  was  objected  on  the  plaintiff's  part 
that  the  said  replication  was  good,  because  the  defendant  doth  not 
claim  any  interest,  but  justilieth  by  force  of  a  commandment;  to 
which  de  injuria  sua  propria  absque  tali  causa  may  be  fitly  applied  : 
and  this  plea,  de  injuria  sua  propria,  shall  refer  only  to  the  com- 
mandment, and  to  no  other  part  of  the  plea;  and  they  cited  the 
books  in  10  Hen.  VI.  3  a,  b,  9  a ;  16  Hen.  VII.  3  a,  b,  etc. ;  3  Hen.  VI. 
35  a;  19  Hen.  VI.  7  a, b,  etc.  But  it  was  adjudged  that  the  replica- 
tion was  insufficient.  And  in  this  case  divers  points  were  resolved. 
1.  That  absque  tali  causa  doth  refer  4;o  the  whole  plea,  and  not 
only  to  the  commandment,  for  all  maketh  but  one  cause,  and  any 
of  them,  without  the  other,  is  no  plea  by  itself.  And  therefore,  in 
false  imprisonment,  if  the  defendant  justifies  by  a  capias  to  the 
sheriff,  and  a  warrant  to  him  there,  de  injuria  sua  propria  generally 
is  no  good  replication,  for  then  the  matter  of  record  will  be  parcel 
of  the  cause  (for  all  makes  but  one  cause),  and  matter  of  record 
ought  not  to  be  put  in  issue  to  the  common  people,  but  in  such 
case  he  may  reply  de  injuria  sua  propria,  and  traverse  the  warrant, 
which  is  matter  in  fact.  But  upon  such  a  justification,  by  force  of 
any  proceeding  in  the  Admiral  Court,  hundred,  or  county,  etc.,  or 
any  other  which  is  not  a  court  of  record,  there  de  injuria  sua  pro- 
pria generally  is  good,  for  all  is  matter  of  fact,  and  all  makes  but 
one  cause.  And  by  these  differences  you  will  agree  your  books  in 
2  Hen.  VII.  3  b;  5  Hen.  VII.  6  a,  b ;  16  Hen.  VII.  3  a;  21  Hen. 
VII.  22  a  (33);  19  Hen.  VI.  7  a,  b;  41  Edvv.  III.  29  b ;  17  Edw. 

III.  44;  18  Edw.  III.  10  b;  2  Edw.  IV.  6  b;  12  Edw.  IV.  10  b; 
14  Hen.  VI.  16 ;  21  Hen.  VI.  5  a,  b ;  13  Eich.  11.     Issue  163. 

2.  It  was  resolved  that  when  the  defendant  in  his  own  right,  or 
as  a  servant  to  another,  claims  any  interest  in  the  land,  or  any 
common,  or  rent  going  out  of  the  land,  or  any  way  or  passage  upon 
the  laud,  etc.,  there  de  injuria  sua  propria  generally  is  no  plea.  But 
if  the  defendant  justifies  as  servant,  there  de  injuria  sua  propria  in 
some  of  the  said  cases,  with  a  traverse  of  the  commandment,  that 
being  made  material,  is  good  ;  and  so  you  will  agree  all  your  books, 
scil,  14  Hen.  IV.  32 ;  33  Hen.  VI.  5 ;  44  Edw.  III.  18 ;  2  Hen.  V. 
1  ;  10  Hen.  VI.  3,  9  ;  39  Hen.  VI.  32;  9  Edw.  IV.  22;  16  Edw. 

IV.  4;  21  Edw.  IV.  6;  28  Edw.  III.  98;  28  Hen.  VI.  9;  21 
Edw.  III.  41 ;  22  Ass.  42;  44  Edw.  III.  13;  45  Edw.  III.  7;  24 
Edw.  III.  72 ;  22  Ass.  85 ;  33  Hen.  VI.  29 ;  42  Edw.  III.  2.  For 
the  general  plea,  de  injuria  sua  propria,  etc.,  is  properly  when  the 
defendant's  plea  doth  consist  merely  upon  matter  of  excuse,  and 
of  no  matter  of   interest   whatsoever;   et   dicitur   de  injuria   sua 


PLEAS   IN    BAR. 


499 


propria,  etc.,  because  the  injury  properly  in  this  sense  is  to  the 
person,  or  to  the  reputation,  as  battery  or  imprisonment  to  the 
person',  or  scandal  to  the  reputation;  there,  if  the  defendant 
excuse  himself  upon  his  own  assault,  or  upon  hue-and-cry  levied, 
there  properly  de  injuria  sua  prujjrla  generally  is  a  good  plea,  for 
there  the  defendant's  plea  consists  only  upon  matter  of  excuse. 

3.  It  was  resolved,  that  wlien  by  the  defendant's  plea  any  author- 
ity or  power  is  mediately  or  immediately  derived  from  the  plaintiff, 
there,  although  no  interest  be  claimed,  the  plaintiff  ought  to  answer 
it,  and  shall  not  reply  generally  de  injuria  sua  propria.  The  same 
law  of  an  authoritv  given  by  the  law  ;  as  to  view  waste,  etc.  Vide  12 
Edw.  VI.  10  ;  9  Edw.  IV.  31 ;  20  Edw.  IV.  4 ;  42  Edw.  III.  2  ;  16 
Hen.  VII.  3. 

Lastly,  it  was  resolved  that,  in  the  case  at  bar,  the  issue  would 
be  full  of  multiplicity  of  matter,  where  an  issue  ought  to  be  full 
and  single  for  parcel  of  the  manor,  demisable  by  copy,  grant  by 
copy,  prescription  of  common,  etc.,  and  commandment  would  be  all 
parcel  of  the  issue.  And  so,  by  the  rule  of  the  whole  court,  judg- 
ment was  given  against  the  plaintiff. 


TAYLOR   V.  MARKHAM. 
In  the  King's  Bench.     1609. 
Reported  Croke's  James,  224. 
De  injuria  will  not  put  immaterial  matter  in  issue. 

In  an  action  of  trespass  and  battery,  the  defendant  pleaded,  that 
he,  at  the  time  of,  etc.  was  seised  of  the  rectory  of  D.  in  fee ;  and 
that  at  the  same  time  and  place  where  the  trespass  and  battery 
were  supposed,  etc.  corn  was  severed  from  the  nine  parts :  and  for 
that  the  plaintiff  would  have  carried  away  his  corn,  the  defendant 
there  stood  in  defence  thereof,  and  kept  the  plaintiff  from  carrying 
it  away  ;  so  as  the  harm  which  the  plaintiff  received  was  of  his  own 
wrong,  etc.  Tlie  plaintiff  replies,  that  the  trespass  and  battery 
were  done  sans  tiel  cause  alledye,  etc.  Whereupon  the  defendant 
demurred  in  law. 

It  was  adjudged  for  the  plaintiff;  for  it  is  not  requisite  in  this 
case  for  the  plaintiff  to  answer  the  defendant's  title,  because  he  does 
not  by  this  action  claim  anything  in  the  la))d  or  corn,  but  only 
damages  for  the  batterv,  which  is  collateral  to  the  title ;  and  there- 
fore  the  general  replication  [de  iujurUi]  is  good  :  but  when  the 
plaintiff  makes  a  title  in  his  declaration  to  anything,  and  the  de- 


500  CASES   ON    COMMON-LAW   PLEADING. 

fendant  pleads  another  thing  against  it,  the  plaintiff  must  reply 
especially,  and  not  say  sans  tiel  cause,  as  it  is  in  14  Heu.  IV.  and 
16  Edw.  IV.  , 

ISAAC   V.  FARRAR. 
In  the  Exchequer.     1836. 
Reported  1  Meeson  &  Welsby,  65. 
De  injuria  can  be  used  in  assumpsit. 

Assumpsit  by  the  indorsee  against -the  maker  of  a  promissory 
note  for  £250,  payable  three  months  after  date  to  the  order  of  the 
maker,  and  by  him  indorsed  to  one  Henry  Kichardsou,  who  in- 
dorsed it  to  the  plaintiff. 

Plea,  that  before  the  making  of  the  said  promissory  note,  to  wit, 
on,  etc.,  a  certain  advertisement  had  been  and  was  inserted  in  a  cer- 
tain newspaper,  to  wit,  the  Morning  Herald,  to  the  tenor  and  effect 
following,  viz.  :  "  Money  to  lend  upon  personal  security.  —  Noble- 
men, clergymen,  and  persons  of  responsibility,  requiring  the  tem- 
porary advance  of  money,  can  be  immediately  accommodated  with 
loans  to  any  amount,  at  a  very  low  rate  of  interest ;  application  to 
be  made  in  the  first  instance  in  writing,  addressed  to  Mr.  Anderson, 
Fludyer  Street,  Westminster."  And  the  defendant  averred,  that  in 
consequence  of  the  advertisement  he  did,  to  wit,  on,  etc.,  call  at  the 
said  place,  to  wit,  etc.,  and  there  saw  one  Charles  Anderson,  and 
that  in  consequence  of  the  representations  made  to  him  by  the  said 
C.  Anderson,  he  the  defendant  was  induced  to  draw  and  deliver, 
and  he  did  then  draw  and  deliver,  to  the  said  Anderson,  two 
promissory  notes,  whereby  and  by  each  of  which  the  defendant 
promised  to  pay  to  his  own  order  the  sum  of  £250,  three  months 
after  the  date  thereof,  (one  of  them  being  the  said  note  in  the  said 
first  count  mentioned,)  upon  the  faith  of  and  promise  from  the  said 
Charles  Anderson,  that  the  said  notes  should  be  renewed,  when 
due,  for  the  space  of  two  years,  and  that  he  should  receive  from 
the  said  Charles  Anderson,  on  a  certain  day,  to  wit,  the  Friday 
then  next  following,  being,  to  wit,  the  first  day  of  May,  1835,  the 
amount  of  the  said  notes,  deducting  discount  and  stamp.  And  the 
defendant  further  saith,  that  the  said  Charles  Anderson  did  not 
nor  would,  either  on  Friday  the  said  first  day  of  May,  1835,  or  at  any 
other  time,  (although  often  requested  so  to  do,)  pay  to  the  said  de- 
fendant the  amount  of  the  said  notes,  deducting  as  aforesaid,  or  any 
sum  of  money  whatever  ;  but  on  the  contrary  thereof,  the  defend- 
ant saith,  that  he  the  said  defendant,  to  wit,  on  the  said  first  day 


PLEAS   IN   BAR.  501 

of  May,  1835,  by  appointment  of  the  said  Charles  Anderson,  went 
to  the  said  place,  to  wit,  12  Fludyer  Street,  but  the  said  Charles 
Anderson  was  not,  nor  was  any  such  person,  either  then  or  at  any 
time  afterwards,  ^here  to  be  found,  and  that  the  said  transaction 
was  a  gross  fraud  and  imposition  upon  him  the  defendant,  and  that 
the  note  was  indorsed  to  the  plaintiff  without  consideration,  and 
that  he  holds  the  same  without  value  or  consideration,  and  that 
there  never  was  and  is  not  any  consideration  or  value  on  the  said 
note  between  any  parties  thereto  ;  and  he  further  saith,  that  the 
said  Henry  Richardson,  and  the  said  plaintiff,  and  each  of  them,  at 
the  several  and  respective  times  when  the  said  note  in  the  said  first 
count  mentioned  was  so  indorsed  and  delivered  to  them  respec- 
tively, as  in  the  said  first  count  mentioned,  was  privy  to  and  had 
full  knowledge  and  notice  of  the  said  transaction  in  this  plea  de- 
tailed, and  of  the  said  fraud  and  imposition  :  and  this  the  defendant 
is  ready  to  verify. 

Replication.  That  the  defendant  of  his  own  wrong,  and  without 
the  cause  by  him  in  that  plea  alleged,  broke  his  said  promise  in  the 
said  first  count  mentioned,  in  manner  and  form  as  the  said  plaintiff 
hath  in  the  said  first  count  of  the  said  declaration  in  that  behalf 
complained  against  him,  etc. 

Special  demurrer,  assigning  for  causes  —  First,  that  the  replica- 
tion de  injuria  is  a  bad  plea  to  the  defendant's  plea  in  assumpsit. 
Secondly,  that  the  replication  is  bad  for  duplicity,  because  it  is  too 
large,  and  puts  in  issue  all  the  several  facts  alleged  by  the  plea,  in- 
stead of  putting  in  issue  the  point  to  be  tried  between  the  parties. 
Thirdly,  that  the  facts  of  the  fraud  and  notice  to  the  plaintiff,  and 
the  want  of  consideration  for  the  note  in  the  plaintiff's  hands, 
alleged  by  the  plea,  are  distinct  and  separable  facts,  on  either  of 
which  the  plaintiff  might  and  ought  to  have  tendered  an  issue,  and 
he  cannot  by  his  replication  put  both  in  issue  ;  and  the  replication, 
because  it  puts  both  such  facts  in  issue,  is  bad. 

The  case  was  argued  in  the  present  term,  by  Hoggins,  in  support 
of  the  demurrer ;  and  by  Humfrey,  contra,  in  support  of  the  repli- 
cation. 

The  court  took  time  to  consider,  and  the  judgment  of  the  court 
was  now  delivered  by 

Lord  Abinger,  C.  B.  On  this  demurrer  to  the  replication,  two 
objections  were  made  :  First,  that  its  form  was  improper,  as  the  in- 
ducement of  de  injuria,  etc.,  was  inapplicable  to  an  action  of 
assumpsit ;  and,  secondly,  that  it  was  bad  because  it  was  multi- 
farious, and  put  in  issue  several  distinct  facts,  each  of  which  would, 
if  disproved,  be  decisive  of  the  action. 


502  CASES    ON    COMMON-LAW   PLEADING. 

We  think  the  replication  is  good,  notwithstanding  these  objections. 

This  form,  though  most  commonly  used  in  actions  of  trespass, 
or  trespass  on  the  case  for  an  injury,  is  not  inappropriate  to  an 
action  of  trespass  on  the  case  for  a  breach  of  promise,  where  the 
plea  admits  a  breach,  and  contains  only  matter  of  excuse  for  having 
committed  that  breach.  The  defendant's  breach  of  promise  may  be 
considered  as.  a  wrong  done,  and  the  matter  included  under  the 
general  traverse  absque  tali  causa,  and  thereby  denied,  as  matter  of 
excuse  alleged  for  the  breach.  —  Per  Lord  Ellenborough,  Barnes  v. 
Hunt,  11  East,  455. 

No  case  in  which  this  form  of  replication  has  been  held  to  be 
improper,  resembles  the  present.  In  Crisp  v.  Griffiths,  2  C.  Mee. 
&  Eos.  159,  the  plea  was  not  matter  of  excuse  for  the  breach  of 
contract,  but  of  subsequent  satisfaction  for  that  breach.  In  Solly 
V.  Neish,  2  C.  Mee.  &  Eos.  355,  the  plea  was  a  denial  of  the 
promise.  So,  in  Whittaker  v.  Mason,  2  Bligh,  New  C.  359  ;  s.  c. 
2  Scott,  the  plea  denied  the  contract  as  alleged ;  and  although  the 
court  intimated  that  it  might  be  doubtful  whether  a  traverse  in 
this  form  was  applicable  to  any  action  on  promises,  they  abstained 
from  deciding  that  question.  On  the  other  hand,  in  the  case  of 
Noel  V.  Eich,  2  C.  Mee.  &  Eos.  360,  this  court  expressed  a 
strong  opinion  that  this  general  form  of  traverse,  in  a  case  similar 
to  the  present,  was  proper :  and  we  think  that  it  is ;  for  the  plea 
confesses  that  the  defendant  made  the  note  in  question  and  in- 
dorsed it  to  Eichardson,  who  indorsed  it  to  the  plaintiff,  which  con- 
stitutes Q,  prima  facie  case  of  liability,  and  an  implied  promise  to 
pay  the  amount  to  the  plaintiff ;  and  it  avoids  the  effect  of  that  ad- 
mission by  showing  that  the  note  was  made  and  indorsed  without 
value  bona  fide  paid,  whereby  the  defendant  was  excused  from  per- 
forming that  promise. 

As  to  the  objection  that  the  replication  is  multifarious,  the  facts 
contained  in  the  plea,  though  they  are  several,  constitute  one 
ground  of  defence ;  and  the  rule  of  pleading  is  not  that  the  issue 
must  be  joined  on  a  single  fact,  but  on  a  single  point  of  defence. 
This  was  laid  down  by  Lord  Mansfield  in  Eobinson  v.  Ealey,  by 
the  Court  of  King's  Bench  in  O'Brien  v.  Saxon,  and  by  Mr.  Justice 
Bayley  in  the  case  of  Carr  v.  Hinchliff,  7  D.  &  E.  42 ;  4  B.  &  C. 
547.  In  each  of  these  cases,  the  facts  there  allowed  to  be  included 
in  one  issue,  as  amounting  to  a  smgle  ground  of  defence,  were 
several.  In  the  first,  the  facts  that  the  cattle  were  commonable, 
and  levant  and  couchant,  constituted  one  proposition,  viz.,  that  the 
cattle  were  entitled  to  common  ;  in  the  second,  the  trading,  petition- 
ing creditor's  debt,  and  act  of  bankruptcy,  formed  one  point  of  de- 


PLEAS    IN    BAR.  503 

fence,  viz.  the  bankruptcy  of  the  plaintiff ;  and  in  the  last,  the 
facts  of  the  goods,  for  the  price  of  which  the  action  was  brought, 
being  sold  by  an  agent  as  principal,  and  a  set-off  of  a  debt  due  from 
the  agent,  constituted  the  defence  of  paj'ment,  or  satisfaction  of 
the  plaintiffs  demand. 

So,  in  the  present  case,  the  plea  contains  in  substance  one 
ground  of  defence  only,  that  is,  that  the  plaintiff  was  not  the  bona  fide 
holder  for  value,  although  several  facts  are  necessarily  averred  as 
constituting  parts  of  it.  Every  indorsee  of  a  bill  has  his  own  title, 
and  that  of  each  intermediate  party ;  and  if  he  or  any  of  such 
parties  gave  value  for  the  bill  without  fraud,  he  is  a  holder  for 
value.  The  plea  in  this  case  alleges  in  effect  that  the  defendant 
had  no  value  for  making  the  note,  and  that  neither  the  first  indor- 
see, nor  the  second,  received  the  bill  bona  fide,  which  is  only  a 
statement,  necessary  in  point  of  law,  of  the  several  facts  con- 
stituting the  defence,  that  the  plaintiff  is  not  a  bona  fide  holder  for 
value. 

If  this  replication  were  not  allowed,  some  inconvenience  would 
follow,  for  in  every  action  on  a  bill  or  note  it  would  be  competent 
for  a  defendant,  by  alleging  fraud,  or  such  other  circumstance  as 
would  throw  the  proof  of  value  on  the  indorsee,  to  compel  him  to 
prove  it.  For  it  would  seldom  happen  that  a  plaintiff,  if  he  were 
tied  down  to  dispute  one  fact,  could  take  issue  on  such  an  allegation  ; 
and  then  he  would  be  obliged  to  take  an  issue  which  would  admit 
the  fraud,  and  throw  the  proof  of  value  on  himself,  thereby  placing 
him  in  a  worse  situation  than  before  the  late  rules.  On  the  other 
hand,  if  this  replication  be  allowed,  the  indorsee  is  left  in  the  same 
situation  as  he  was  before,  with  the  additional  advantage  that  he  is 
made  acquainted  with  the  defence  intended  to  be  set  up,  which  was 
one  grand  object  of  the  pleading  regulations ;  and  he  will  be  called 
upon  to  prove  value  given  or  not,  accordingly  as  the  defendant 
shall  prove  or  fail  in  the  proof  of  the  allegation  of  fraud,  as  he 
would  before  under  the  general  issue. 

We  do  not,  however,  decide  tliis  case  on  the  ground  of  con- 
venience, but  in  conformity  with  the  established  rules  of  pleading ; 
and  we  are  of  opinion  that  the  demurrer  must  be  overruled. 

Judgment  for  the  plaintiff. 


504  CASES   ON   COMMON-LAW    PLEADING. 


THOMAS    COCKERILL    v.    MATTHEW    ARMSTRONG    AND 

SIX   OTHERS. 

In  the  Common  Pleas.     1738. 

Reported  Willes,  99. 

When  the  plaintiff  in  his  declaration  makes  title,  and  the  defendant  replies 
against  it,  de  injuria  is  not  a  good  replication. 

The  opinion  of  the  court  was  thus  delivered  by 

Willes,  Ld.  C.  J.  Trespass  for  taking,  leading  away,  and  im- 
pounding a  gelding  of  the  plaintiff's,  and  for  keeping  him  in  pound 
for  the  space  of  four  days,  etc.     Damage,  £30. 

The  defendants  all  pleaded  a  special  plea,  that  the  place  where 
the  geldinff  was  taken  at  the  time  when,  etc.,  was  a  close  called 
Weapness,  containing  1000  acres  of  pasture  ground;  of  which  said 
lUOO  acres  the  bailitl's  and  burgesses  of  the  borough  of  Scarborough 
were  at  the  time,  when,  etc.,  seised  in  their  demesne  as  of  fee,  and 
because  the  said  gelding  m  the  declaration  mentioned  at  the  time, 
when,  etc.,  was  in  the  said  1000  acres  feeding  upon  and  eating  the 
grass  there  growing,  and  doing  damage  there,  the  said  Matthew, 
etc.,  as  servants  of  the  bailiffs  and  burgesses  of  the  said  borough, 
and  by  their  command,  took  the  said  gelding  so  feeding  and  doing 
damage  there,  and  impounded  the  said  gelding  in  the  common  and 
open  pound  at  Scarborough  aforesaid,  and  detained  him  there  for 
the  time  mentioned  in  the  declaration,  as  it  was  lawful  for  them  to 
do ;  which  is  the  same  trespass,  etc. 

The  plaintiff  replies  that  the  defendants  took  away  and  im- 
pounded the  said  gelding  of  their  own  wrong,  without  any  such 
cause,  etc. 

The  defendants  demur ;  and  for  cause  of  demurrer  show  that  the 
plaintiff  in  his  replication  hath  traversed  the  said  several  matters 
contained  in  the  plea,  whereas  he  should  have  traversed  one  single 
matter,  whereon  a  proper  issue  might  have  been  joined ;  and  that 
the  said  replication  is  uncertain,  etc.  The  plaintiff  joins  in 
demurrer. 

The  single  question  is,^  whether  de  injuria  sua  propria  absque 
tali  causa  be  a  good  replication,  and  we  are  all  of  opinion  that  it 
is  not  a  good  replication,  for  two  reasons,  both  expressly  laid  down 
in  Crogate's  Case. 

1  This  case  was  twice  argued,  the  first  time  in  Easter,  1738,  hy  Eyre,  King's  Serjt.,  for 
the  defeudants,  and  Bootle,  Serjt.,  for  the  plaintiff ;  and  again  on  the  10th  of  June, 
1738,  by  Wynne,  Serjt.,  for  the  former,  and  Burnett,  Serjt.,  for  the  latter. 


PLEAS   IN   BAR.  505 

The  first  of  them  is  the  reason  assigned  as  the  cause  of  the 
demurrer,  because  it  puts  several  things  in  issue,  whereas  the  issue 
ought  to  be  plain  and  single.  For  upon  this  issue  the  defendants 
must  prove  that  the  bailiffs  were  seised  in  fee  (or,  at  least,  that 
they  were  possessed)  ;  that  the  defendants  acted  by  their  command  ; 
that  the  gelding  at  the  time  when  he  was  taken  was  in  a  close 
called  Weapness,  and  that  he  was  depasturing  the  grass  and  doing 
damage  there. 

The  other  rule,  which  is  laid  down  by  Lord  Coke,  is,  that  when 
the  defendant  in  his  own  right,  or  as  servant  to  another,  claiming 
any  interest  in  the  land,  or  any  way  or  passage  therein,  or  rent 
issuing  thereout,  justifies  the  trespass,  c?e  injuria  sua  -propria  absque 
tali  causa  is  not  a  good  replication  :  and  Crogate's  Case  is  exactly 
parallel  to  this,  only  the  present  is  a  little  stronger.  There  the 
action  was  only  for  chasing  the  plaintiff's  cattle,  which  does  not 
so  much  as  imply  any  claim  of  right  in  the  defendant ;  but  here  it 
is  for  taking  away  and  impounding,  which  seems  to  imply  a  claim 
of  right.  And  the  plea  is  almost  the  same  as  this  ;  for  the  defend- 
ant justifies  as  servant  to  one  who  claims  a  right  in  the  place 
where,  only  it  is  not  said  there  that  the  cattle  were  damage- 
feasant.  So  that  in  that  respect  likewise  the  present  case  is 
stronger  than  that.  And  yet,  though  the  case  in  Coke  is  not  so 
strong  as  the  present  in  these  two  respects,  de  injuria  sua  propria 
absque  tali  causa  was  halden  on  a  demurrer  by  the  whole  court  after 
a  solemn  argument  not  to  be  a  good  replication. 

I  do  not  at  all  rely  on  the  case  in  Cro.  Jac.  599,  because  absque 
tali  causa  is  there  omitted.  But  the  case  of  Taylor  v.  Markham, 
though  cited  for  the  plaintiff  in  this  case,  makes,  I  think,  rather 
against  him.  The  case  itself  is  plainly  distinguishable  from  this ; 
for  the  action  is  an  action  of  assault  and  battery,  where  the  title  of 
•the  land  can  never  possibly  come  to  be  material.  But  it  is  ex- 
pressly there  laid  down  that  where  the  plaintiff  in  his  declaration 
makes  a  title  to  any  thing,  and  the  defendant  pleads  another  thing 
against  it  or  in  destruction  of  the  cause  of  action  of  the  plaintiff, 
there  the  plaintifi"  must  reply  specially,  and  de  injuria  sua  propria 
absque  tali  causa  is  not  a  good  replication  ;  which  is  exactly  the 
present  case.  And  there  is  a  case  cited  in  Yelv.,  out  14  Hen.  IV. 
32,  trespass  for  taking  the  plaintiff's  servant ;  the  defendant  pleaded 
that  the  father  of  the  person  taken  held  of  him  by  knight's  service 
and  died  seised,  the  person  taken  being  under  age,  and  that  he 
seised  him  as  his  ward ;  the  plaintiff  replied  de  injuria  sua  propria 
absque  tali  causa,  and  held  to  be  no  good  replication  ;  which  case 
seems  to  be  exactly  parallel  to  the  present.     1  do  not  rely  at  all  on 


506  CASES    ON    COMMOX-LAW    PLEADING. 

the  case  of  Cooper  v.  Monke  and  Others,  Willes,  52,  which  was 
determined  in  this  court  as  to  this  point  in  Hihiry  Term,  1737  ; 
because  that  was  an  action  for  breaking  and  entering  a  house, 
which,  to  be  sure,  is  plainly  distinguishable  from  the  present  case. 
The  case  of  Whitnell  v.  Cook,  Cro.  Eliz.  812,  seems  to  be  a  case  in 
point.  Eeplevin  for  taking  cattle ;  the  defendant,  as  baiHfT  to  one 
Payne,  seised  of  the  third  part  of  the  place  where,  justified  taking 
them  damage-feasant ;  the  plaintiff  pleaded  that  a  stranger  was 
seised  of  the  other  two  parts,  and  that  he  put  the  cattle  in  by  his 
license,  de  injuria  sua  propria,  etc.,  by  the  defendant ;  and  that 
held  on  a  demurrer  not  to  be  good,  but  judgment  for  the  plaintiff. 

It  is  said,  indeed,  in  the  case  of  the  Archbishop  of  Canterbury  v. 
Kemp,  Cro.  Eliz.  539,  that  where  the  defendant  himself  claims  an 
interest  in  lands,  this  is  not  a  good  replication,  but  where  he  justi- 
fies by  command  of  another  claiming  interest,  there  it  is :  but  this 
seems  to  be  a  distinction  without  a  difference,  as  the  title  to  the 
land  must  equally  come  in  question,  and  is  alike  necessary  to  be 
proved  in  both  cases ;  and  it  is  directly  contrary  to  Crogate's 
Case. 

Whether  or  no  in  the  present  case  it  was  necessary  for  the  de- 
fendant to  set  forth  a  title,  or  whether  he  might  have  relied  only 
on  a  possession  (as  this  is  not  a  quare  clausum  f regit,  but  an  action 
for  taking  a  personal  thing  without  claiming  any  right  to  the  place), 
we  need  not  determine,  though  T  think  it  was  not  necessary  ;  be- 
cause he  having  insisted  on  a  seisin  in  fee,  we  think  it  is  more  than 
an  inducement,  and  that  it  is  necessary  to  prove  it,  or  at  least  a 
possession  which  is  primci  facie  a  proof  of  a  seisin  in  fee,  and  will 
be  exactly  the  same  thing  in  respect  to  the  present  point.  And 
there  is  a  plain  difference  between  the  present  case  and  the  case  of 
an  action  for  an  assault  and  battery ;  because  there,  if  the  party  be 
possessed,  even  though  the  plaintiff  should  have  a  title  to  the 
house  or  place,  it  will  signify  nothing ;  for  his  bare  possession  will 
justify  him  even  turning  the  right  owner  out  of  the  house  :  whereas 
here,  if  the  plaintiff  has  a  right  to  the  place  where,  etc.,  for  right  of 
common,  etc.,  it  may  quite  destroy  the  defendant's  plea.  And  the 
present  case  is  the  stronger,  as  the  defendants  have  specially 
assigned  this  as  a  cause  of  demurrer. 

We  are  therefore  all  of  opinion  that  judgment  must  be  for  the 
defendants. 


PLEAS  IN  BAR. 


H.  C.  SELBY,  ESQ.,  v.    BARDONS  AND  ANOTHER. 

In  the  King's  Bench.     1832. 
Reported  3  Barnewall  &  Adolphus,  2. 

De  injuria  can  be  used  in  replevin  as  a  plea  to  an  avowry  or  cognizance. 

Declaration  in  replevin  for  taking  the  plaintiffs  goods  and  chat- 
tels in  Verulam  Buildings,  Gray's  Inn,  in  the  county  of  Middlesex, 
and  detaining  the  same  against  sureties  and  pledges.  The  fourth 
avowry  and  cognizance  were  by  the  defendant  Bardons,  as  collector 
of  the  poor-rates  of  that  part  of  the  parish  of  St,  Andrew,  Holborn, 
which  lies  above  the  bars,  in  the  county  of  Middlesex,  and  of  the 
parish  of  St.  George  the  Martyr  in  the  said  county,  and  by  the 
other  defendant  as  his  bailiff;  and  it  stated  that  the  plaintiff  was 
an  inhabitant  of  the  said  part  of  the  parish  of  St.  Andrew,  Hol- 
born, and  by  law  ratable  to  the  relief  of  the  poor  of  that  part  of 
the  said  parish,  and  of  the  parish  of  St.  George  the  Martyr,  in 
respect  of  his  occupation  of  a  tenement  situate  in  the  said  place  in 
which,  etc.,  and  within  the  said  part  of  the  parish  of  St.  Andrew  ; 
that  a  rate  for  the  relief  of  the  poor  of  that  part  of  St.  Andrew, 
Holborn,  and  of  the  parish  of  St.  George  the  Martyr,  was  duly 
ascertained,  made,  signed,  assessed,  allowed,  given  notice  of,  and 
published  according  to  the  statutes ;  and  that  by  the  said  rate  the 
plaintiff  was,  in  respect  of  such  inhabitancy  and  occupation  as 
aforesaid,  duly  rated  in  the  sum  of  £7  ;  that  Bardons,  as  collector, 
gave  him  notice  of  the  rate,  and  demanded  payment,  which  he 
refused ;  that  the  plaintiff  was  duly  summoned  to  appear  at  the 
petty  sessions  of  the  justices  of  the  peace  for  the  said  county,  to 
be  holden  at  a  time  and  place  duly  specified,  to  show  cause  why  he 
refused  payment ;  that  he  appeared,  and  showed  no  cause  ;  that  a 
warrant  was  duly  made  under  the  hands  and  seals  of  two  justices 
of  peace  for  the  county  then  present,  directed  to  Bardons  as  col- 
lector, requiring  him,  according  to  the  statute,  to  make  distress  of 
the  plaintiff's  goods  and  chattels  ;  that  the  warrant  was  delivered 
to  Bardons,  under  which  he,  as  collector,  avowed,  and  the  other 
defendant,  as  his  bailiff,  acknowledged  the  taking  of  the  goods  as  a 
distress,  and  prayed  judgment  and  a  return  of  the  goods.  The 
plaintiff  pleaded  in  bar  that  the  defendants  of  their  own  wrong, 
and  without  such  cause  as  they  had  in  their  avowry  and  cognizance 
alleged,  took  the  plaintiff's  goods  and  chattels,  etc.  To  this  plea 
there  was  a  special  demurrer,  and  the  causes  assigned  were,  that 
the  plea  in  bar  tendered  and  offered  to  put  in  issue  several  distinct 


508  CASES    ON    COMMON-LAW    PLEADING. 

matters,  —  the  inhabitancy  of  the  plaintiff;  his  chargeability  to 
the  relief  of  the  poor,  in  respect  of  his  occupation  mentioned  in 
the  avowry  and  cognizance ;  the  ascertainment,  making,  signing, 
assessing,  allowance,  notice,  and  publication  of  the  rate  ;  the  rating 
and  assessment  of  the  plaintiff;  the  notice  to  him  of  the  rate  ;  the 
demand  and  refusal  of  the  sum  assessed ;  the  summons,  the  appear- 
ance before  the  justices,  the  warrant  of  distress,  and  delivery 
thereof  to  the  defendant  Bardons.  Another  cause  assigned  was, 
that  the  plea  in  bar  was  pleaded  as  if  the  avowry  and  cognizance 
consisted  wholly  in  excuse  of  the  taking  and  detaining,  and  did 
not  avow  and  justify  the  same,  and  claim  a  right  to  the  goods  and 
chattels  by  virtue  of  the  statutes.  To  the  fifth  and  six  avowries 
and  cognizances,  which  were  similar  in  form  to  the  fourth,  the 
plaintiff  pleaded  de  injuria;  and  there  were  special  demurrers, 
assigning  the  same  causes  as  above.  The  plaintiff  joined  in 
demurrer. 

The  case  was  argued  in  last  Michaelmas  Term  by  Coleridge  in 
support  of  the  demurrer,  and  Maule,  contra.  The  judges,  not  being 
agreed  in  their  opinions,  now  delivered  judgment  seriatim.  The 
points  urged  and  the  authorities  cited  in  argument  are  sufficiently 
stated  and  commented  on  in  the  opinions  delivered  by  them. 

Patteson,  J.  The  pleas  in  bar  to  the  fourth,  fifth,  and  sixth 
cognizances  are  so  entirely  at  variance  with  one  of  the  principal 
objects  of  special  pleading,  viz.  that  of  bringing  the  parties  to  clear 
and  precise  issues  of  fact  or  of  law,  that  I  cannot  bring  my  mind 
to  consider  them  as  maintainable  upon  principle.  But  if,  upon 
the  authority  of  decided  cases,  it  should  appear  that  they  are  main- 
tainable, I  am  not  prepared  to  overrule  those  cases  upon  any 
opinion  that  I  may  entertain  respecting  the  inconvenience  of  so 
general  a  form  of  issue ;  and  I  am  free  to  confess  that,  after  an 
attentive  examination  of  the  authorities,  I  am  of  opinion  that  the 
pleas  are  maintainable. 

The  leading  case  upon  the  subject  (I  mean  Crogate's  Case,  for 
the  Year-Books  throw  little  light  on  the  subject)  is  by  no  means 
consistent  in  all  its  different  parts,  and  much  that  is  contained  in 
the  four  resolutions  is  unnecessary  to  the  decision  of  the  case 
itself. 

The  pleadings  were  in  substance  as  follows :  Trespass  for  driving 
cattle.  Plea,  a  right  of  common  as  copy-holder  in  a  piece  of 
pasture  into  which  the  plaintiff  had  put  his  cattle;  and  that  de- 
fendant, as  servant  of  the  commoner,  drove  them  out.  Keplication, 
de  injuria  sua  propria  absque  tali  causa. 

The  first  resolution  is  in  substance  this :  that  the  replication  de 


PLEAS    IN    BAR.  509 

injuria  absque  tali  causa  refers  to  the  whole  plea  ;  for  all  is  but  one 
cause.  The  second  resolution  is,  that  where  any  interest  in  land, 
or  common,  or  rent  of  or  way  over  land  is  claimed,  de  injuria  is 
no  plea ;  for  it  is  properly  wlien  the  plea  does  consist  of  matter  of 
excuse  only,  and  no  matter  of  interest  whatever.  The  third  reso- 
lution is,  that  wliere  the  defendant  justifies  under  authority  from 
the  plaintiff',  de  injuria  is  no  plea  ;  so  where  he  justifies  under 
authority  of  law.  The  fourth  resolution  is,  that  the  issue  in  the 
case  then  at  bar  would  be  full  of  multiplicity. 

Upon  the  authority  of  this  case,  if  the  pleas  in  bar  now  under 
consideration  be  bad,  they  must  be  so  on  one  of  the  following 
grounds :  — 

Either  that  the  avowries  claim  some  interest,  or  that  the  de- 
fendant justifies  under  authority  of  law  within  the  meaning  of  the 
third  resolution,  or  that  they  are  bad  for  multiplicity. 

In  the  first  place,  as  to  any  claim  of  interest,  it  is  plain  that  the 
avowries  claim  no  interest  whatever  in  land,  the  sort  of  interest  to 
which  the  second  resolution  is  in  words  confined.  But,  supposing 
any  interest  in  goods  were  within  the  spirit  of  that  resolution, 
still,  I  apprehend  that  it  must  be  an  interest  existing  antecedent 
to  the  seizure  complained  of,  and  not  one  which  arises  merely  out 
of  that  seizure ;  otherwise  this  plea  could  never  be  good  in  replevin 
where  a  return  of  goods  is  claimed,  and,  of  course,  an  interest  in 
them  is  asserted.  Indeed,  it  seems  to  be  considered  in  some  text- 
books that  this  plea  in  bar  can  never  be  used  in  replevin  ;  but  on 
reference  to  the  authorities  cited  for  that  position,  they  all  appear 
to  be  cases  where  an  interest  in  land  was  claimed  by  the  avowry. 
In  this  respect,  I  confess  that  I  cannot  see  any  distinction  between 
an  action  of  replevin  and  one  of  trespass ;  and  as  the  plaintiff  can 
bring  either  at  his  election,  it  would  be  strange  if  he  should  be 
able  by  suing  in  trespass  to  entitle  himself  to  the  general  form  of 
replication,  but  if  he  sues  in  replevin  should  be  debarred  from  it. 
The  case  of  Wells  v.  Cotterel,  3  Lev.  48,  was  cited  at  the  bar  to 
establish  that  the  plea  of  de  injuria  is  good  in  replevin ;  but  it 
appears  in  that  case  that  three  of  the  judges  held  it  good  against 
the  opinion  of  the  fourth,  but  that  all  the  court  held  the  avowry 
bad,  and  therefore  no  decision  was  necessary  as  to  the  plea.  On 
the  other  hand,  the  case  of  Jones  v.  Kitchin  is  commonly  referred 
to  as  establishing  the  position  that  this  plea  in  bar  can  never  be 
used  in  replevin ;  but  it  does  not  go  that  length,  for  the  avowry 
there  was  for  rent  in  arrear,  and,  therefore,  de  injuria  would  have 
been  equally  bad  had  the  form  of  the  action  been  trespass.  For, 
in  White  v.  Stubbs,  2  Sauud.  294,  which  was  an  action  of  trespass. 


510  CASES   ON    COMMON-LAW   PLEADING. 

de  injuria  was  held  to  be  a  bad  replication,  the  plea  claiming  an 
interest  in  land,  and  justifying  the  taking  the  goods  as  encumber- 
ing a  room  to  which  the  defendant  showed  title. 

As,  therefore,  the  avowries  in  this  case  show  no  interest  in  land 
or  in  the  goods  seised,  except  that  which  arises  from  claiming  a 
return  ;  and  as  I  find  no  authority  for  saying  that  such  claim  of 
return  is  an  interest  within  the  meaning  of  the  second  resolution 
in  Crogate's  Case,  it  seems  to  me  that  the  avowries  show  matter  of 
excuse  only,  and  that,,  as  to  this  ground  of  objection,  the  general 
pleas  in  bar  of  de  injuria  are  good. 

In  the  next  place,  are  the  general  pleas  bad  on  account  of  any 
authority  in  law  shown  by  the  avowries  ? 

It  is  certainly  stated  in  the  third  resolution  in  Crogate's  Case, 
that  the  replication  de  injuria  is  bad  where  the  plea  justifies  under 
an  authority  in  law ;  but  this,  if  taken  in  the  full  extent  of  the 
terms  used,  is  quite  inconsistent  with  part  of  the  first  resolution, 
which  states,  that  where  the  plea  justifies  under  the  proceedings  of 
a  court  not  of  record,  the  general  replication  may  be  used,  or  where 
it  justifies  under  a  capias  and  warrant  to  sheriff,  all  may  be 
traversed  except  the  capias,  which  cannot,  because  it  is  matter  of 
record  and  cannot  be  tried  by  a  jury.  Now,  the  proceedings  of  a 
court  not  of  record,  and  the  warrant  to  a  sheriff  and  seizure  under 
it,  are  surely  as  complete  authorities  in  law  as  any  authority  dis- 
closed by  the  present  avowries.  With  respect  to  the  proceedings 
of  a  court  not  of  record,  a  quaere  is  made  in  Lane  v.  Robinson, 
2  Mod.  102,  whether  a  replication  de  injuria  would  be  good;  but 
the  point  did  not  arise  in  the  case,  and  the  Year-Books  referred  to  in 
Crogate's  Case  warrant  the  conclusion  that  it  would.  In  Bro.  Abr. 
title  De  Son  Tort  Demesne,  there  are  instances  of  this  replication 
to  a  plea  justifying  by  authority  of  law.  There  is  also  the  case 
referred  to  in  the  argument  at  the  bar,  of  Chancy  v.  Win  and 
Others,  in  which  it  is  laid  down  by  Lord  Holt,  that  de  injuria  is  a 
good  replication  in  many  cases  where  the  plea  justifies  under  an 
authority  in  law.  I  do  not  therefore  think  that  the  present  pleas 
are  objectionable  on  that  ground. 

In  the  last  place,  are  the  pleas  bad  on  account  of  the  issue, 
tendered  by  them,  being  multifarious  ? 

If  this  were  res  integra,  1  should  have  no  hesitation  in  holding 
that  they  were  bad ;  and  it  cannot,  I  think,  be  denied  that  the 
present  issues  are  as  full  of  multiplicity  as  that  in  Crogate's  Case, 
and  to  which  the  fourth  resolution  there  applied.  But  I  am  un- 
able to  find  any  instance  in  which  this  general  replication  has  been 
held  bad  on  that  ground.     The  objection  is  indeed  mentioned  in 


PLEAS   IN    BAR. 


)11 


the  cases  cited  from  Lord  Chief  Justice  Willes's  reports,  but  in  no 
one  of  those  cases  does  the  decision  proceed  on  that  objection  alone, 
and  in  all  of  them  there  were  other  undoubted  objections.  In 
Cooper  V.  Monke,  Willes,  52,  the  plea  justified  under  a  distress  for 
rent,  and  the  general  replication  was  clearly  bad  within  the  second 
resolution  in  Crogate's  Case.  In  Cockerill  v.  Armstrong,  the  plea 
justified  under  a  seizure  of  cattle  damage  feasant  in  a  close  of 
which  the  bailiffs  and  burgesses  of  Scarborough  were  alleged  to  be 
seised  in  fee  ;  an  interest,  therefore,  was  claimed  in  the  land,  and 
the  general  replication  was  bad  within  the  same  resolution  ;  and 
Lord  Chief  Justice  Eyre,  in  commenting  on  that  case  in  Jones  v. 
Kitchin,  expressly  states  that  the  replication  was  bad  on  that 
ground,  and  not  because  it  put  two  or  three  things  in  issue,  for 
that  may  happen  in  every  case  where  the  defence  arises  out  of 
several  facts  all  operating  to  one  point  of  excuse.  In  Bell  v. 
Warden,  Willes,  202,  the  pleas  set  up  a  custom,  whicli  was  held 
bad,  and,  therefore,  any  decision  as  to  the  general  replication 
became  unnecessary. 

It  is  every  day's  practice  where  the  plea  justifies  an  assault  in 
defence  of  the  possession  of  a  close,  or  removing  goods  doing 
damage  to  it,  to  reply  de  injuria  generally,  and  yet  this  objection 
as  to  the  multifarious  nature  of  the  issue  would  apply  in  both 
cases.  The  same  observation  holds  good  where  this  general  repli- 
cation is  used  in  actions  for  libel  or  slander,  in  which  a  justification 
is  pleaded. 

Many  cases  are  referred  to  in  Com.  Dig.  tit.  Pleader,  (F)  18,  and 
several  following  numbers,  and,  again,  3  (M)  29,  in  none  of  which 
do  I  find  that  the  general  form  of  replication  has  ever  been  held 
bad  on  account  of  its  putting  in  issue  several  facts. 

The  cases  of  Robinson  v.  Eayley,  1  Burr.  316,  and  O'Brien  v. 
Saxon,  are  authorities  to  show  that  it  cannot  be  objected  to  on  that 
account,  provided  the  several  facts  so  put  in  issue  constitute  one 
cause  of  defence,  which,  as  it  seems  to  me,  they  always  will,  where 
the  plea  is  properly  pleaded,  however  numerous  they  may  be,  since 
if  they  constitute  more  than  one  cause  the  plea  will  be  double. 

The  present  avowries  state  many  facts  undoubtedly,  but  tbey 
are  all  necessary  to  the  defence,  and  combined  together  they  show 
but  one  cause  of  defence,  namely,  that  the  plaintiff's  goods  were 
rightfully  taken  under  a  distress  for  poor-rates  ;  and  if  the  general 
replication  be  held  bad  in  this  case,  I  am  at  a  loss  to  see  in  what 
case  such  a  replication  can  be  held  good,  where  it  puts  more  than 
one  fact  in  issue.  I  am  compelled  therefore,  however  reluctantly, 
to  come  to  the  conclusion  that  the  pleas  in  bar  are  good. 


512  CASES    ON   COMMON-LAW   PLEADING. 

Parke,  J.,^  after  stating  the  pleadings,  proceeded  as  follows  :  — 
The  question  for  our  decision  is,  whether  the  objections  pointed 
out  in  the  special  demurrer,  and  which  have  been  insisted  upon  in 
the  argument  before  us,  are  well  founded  in  law  ?  It  appears  to 
me,  upon  an  examination  of  the  authorities,  that  they  are  not,  and 
that  the  pleas  in  bar  are  good. 

It  is  true  that  these  pleas  in  bar  put  in  issue  a  great  number  of 
distinct  facts ;  and  it  is  also  true  that  the  general  rule  is,  that 
where  any  pleading  comprises  several  traversable  facts  or  allega- 
tions, the  whole  ought  not  to  be  denied  together,  but  one  point 
alone  disputed  ;  and  I  am  fully  sensible  that  the  tendency  of  such 
a  rule  is  to  simplify  the  trial  of  matters  of  fact,  and  to  save  much 
expense  in  litigation.  But  it  is  quite  clear,  that  from  a  very  early 
period  in  the  history  of  the  law,  an  exception  to  this  general  rule 
has  been  allowed  with  respect  to  all  actions  of  trespass  on  the  case, 
in  the  plea  of  the  general  issue;  and  with  respect  to  some  actions 
of  tort,  in  the  replication  of  de  injuria  sua  propria  absque  tali 
causa.  This  replication,  where  it  is  without  doubt  admissible, 
generally,  indeed  it  may  be  said  always,  puts  in  issue  more  than 
one  fact,  and  often  a  great  number.  For  instance,  in  an  action  of 
assault,  where  there  is  a  justification  that  the  defendant  was  pos- 
sessed of  a  house  ;  that  the  plaintiff  entered ;  that  the  defendant 
requested  him  to  retire,  and  he  refused ;  that  the  defendant  laid 
his  hands  on  the  plaintiff  to  remove  him,  and  the  plaintiff  resisted  ; 
—  all  these  facts  may  be  denied  by  this  general  replication.  Com. 
Dig.  Pleader,  (F)  18.  Hall  v.  Gerard,  Latch,  128,  221,  273.  So, 
where  an  obligation  to  repair  fences,  and  a  breach  of  the  fences  by 
the  plaintiff  is  pleaded  as  an  excuse  for  a  trespass  with  cattle. 
Ptastell,  621  a,  Com.  Dig.  Pleader,  3  (M)  29.  So,  if  there  be  a 
justification  of  assault  and  false  imprisonment,  on  the  ground  of  a 
felony  committed,  and  reasonable  suspicion  of  the  plaintiff';  Bro. 
Abr.  De  Son  Tort,  49.  So  as  to  other  justifications  in  the  like 
action;  Ibid.  18,  20.  Under  the  precept  of  an  admiralty  court, 
or  under  a  precept  after  plaint  levied  in  a  county  or  hundred 
court,  Rastell,  668  a,  many  facts  may  be  put  in  issue  by  the  gen- 
eral replication,  and  there  appears  no  question  about  the  validity  of 
such  a  replication  ;  Crogate's  Case.  The  case  of  O'Brien  v.  Saxon 
is  a  further  authority  to  the  same  effect,  that  many  facts  may  be 
included  in  one  issue ;  and  if  many  facts  may  be  traversed,  it  can 
be  no  valid  objection  that  more  than  usual  are  denied  in  any 
particular  case. 

1  Taunton,  J.,  delivered  no  judgment,  having  been  consulted  in  the  cause  when  at 
the  bar. 


PLEAS   IN    BAR,  513 

I  must  not,  however,  omit  to  notice,  there  is  a  dictum  of  Lord 
Chief  Justice  Willes  in  the  case  of  Bell  v.  Wardell,  Willes,  204, 
tliat  the  general  replication  of  de  ivjuria  was  bad  on  this  ground, 
and  also  in  that  of  Cockerill  v.  Armstrong  ;  but  Lord  Chief  Justice 
Eyre,  in  Jones  v.  Kitchin,  disapproves  of  that  dictum,  and  says  that 
the  reason  is  not  that  the  replication  puts  two  or  three  things  in 
issue  ;  and  both  these  cases  may  be  supported  on  another  ground, 
namely,  that  in  one  a  right  in  the  nature  of  a  right  of  way,  in  the 
other  a  seisin  in  fee,  would  be  included  in  the  traverse. 

It  seems  clear  to  me,  therefore,  that  this  general  traverse  in  actions 
of  tort  is  not  bad  on  account  of  the  multiplicity  of  the  matters  put 
in  issue ;  and  unless  there  be  some  distinction  between  actions  of 
replevin  and  actions  of  tort  (a  point  I  shall  afterwards  consider), 
the  tirst  ground  of  objection  must  fail. 

The  second  ground  is,  that  the  avowry  and  cognizance  claim  an 
interest  in  the  goods,  and  that  for  this  reason  the  pleas  in  bar  are 
not  admissible.  Upon  the  best  consideration  I  have  been  able  to 
give  to  the  authorities  on  this  subject,  which  are  (many  of  them) 
obscure  and  contradictory,  T  do  not  think  that  any  interest  is  claimed 
in  these  pleadings,  within  the  meaning  of  that  word  in  the  rules  laid 
down  on  this  subject.  In  Crogate's  Case,  the  principal  authority, 
three  cases  are  mentioned  in  which  the  general  traverse  is  not 
allowed. 

The  first  is,  where  matter  of  record  is  parcel  of  the  issue ;  and 
that  for  the  obvious  reason,  that  if  it  were  permitted,  it  would  lead 
to  a  wrong  mode  of  trial. 

The  second  case  is,  where  the  defendant  in  his  own  right,  or  as 
servant  to  another  (who  is  by  that  decision  put  on  the  same  foot- 
ing as  his  master),  claims  an  interest  in  the  land,  or  any  common, 
or  rent  going  out  of  the  land,  or  any  way  or  passage  upon  the  land. 

The  third  case  is,  where,  by  the  defendant's  plea,  any  authority  or 
power  is  mediately  or  immediately  derived  from  the  plaintiff.  Un- 
der this  description  is  included  any  title  by  lease,  license,  or  gift 
from  the  plaintiff;  Bro.  Abr.  De  Son  Tort  Demesne,  4:1 ;  or  lease 
from  his  lessee;  16  Hen.  VII.  3.  Bro.  Abr.  De  Son  Tort  Demesne, 
53.  It  is  also  added  in  Crogate's  Case,  that  the  same  law  is  of  an 
authority  given  from  the  law,  as  to  view  waste ;  but  in  the  case 
cited  from  the  Year  Book,  12  Edw.  IV.  10  b,  as  supporting  this  posi- 
tion, the  plea  stated  that  the  plaintiff  claimed  as  tenant  by  statute 
merchant,  and  defendant  justified  his  entry  under  his  right  to  view 
waste,  so  that  matter  of  record  would  have  been  in  issue  under  the 
general  replication.  This  explanation  of  the  case  was  given  at  the 
bar  in  Chancy  v.  Win,  and  in  the  same  case  Lord  Holt  says,  that 

33 


514  CASES    ON    COMMON-LAW   PLEADING. 

the  case  of  a  right  of  entry  to  view  waste  is  upon  a  special  reason, 
because  the  seisin  of  the  lessor  would  be  involved  in  the  issue.  As 
a  general  proposition,  indeed,  it  is  untrue  that  authority  of  law  may 
not  be  included  in  the  traverse,  it  being  clear  that  an  arrest  by  a 
private  individual  or  a  peace  officer  is  by  an  authority  from  the 
law ;  and  yet  pleas  containing  such  a  justification  may  be  denied 
by  a  general  traverse. 

Lord  Coke  says,  after  laying  down  these  three  rules,  that  the 
general  plea  de  injuria,  etc.,  is  properly  when  the  defendant's  plea 
doth  consist  merely  of  matter  of  excuse,  and  of  no  matter  of  inter- 
est whatever.  By  this  I  understand  him  to  mean  an  interest  in 
the  realty,  or  an  interest  in,  or  title  to  chattels,  averred  in  the 
plea,  and  existing  prior  to,  and  independently  of  the  act  complained 
of,  which  interest  or  title  v/ould  be  in  issue  on  the  general  replica- 
tion ;  and  I  take  the  principle  of  the  rule  to  be,  that  such  alleged 
interest  or  title  shall  be  specially  traversed,  and  not  involved  in  a 
general  issue. 

It  is  contended,  however,  on  the  part  of  the  defendants,  that  the 
interest  here  meant  is  one  that  the  party  would  acquire  by  the 
seizure  which  forms  the  subject  of  complaint,  and  that  the  replica- 
tion would  be  improper  whenever  the  defendant  justified  under  any 
proceedings  by  which,  if  rightful,  he  would  acquire  an  interest  or  a 
special  property. 

If  this  were  the  meaning  of  the  term  "  interest,"  a  general  repli- 
cation would  be  bad  to  a  plea  to  an  action  of  trespass  justifying 
seizure  under  process  of  the  Admiralty  Court,  or  of  any  inferior 
jurisdiction  not  of  record.  So  in  case  of  a  justification  of  taking 
beasts  in  withernam  (16  Hen.  VII.  2).  So  of  a  justification  of 
seizure  for  salvage ;  Lilly's  Entries,  p.  349.  And  yet  in  all  these 
cases  it  appears  to  be  settled  that  the  general  traverse  is  permitted. 
It  seems  to  me,  therefore,  that  the  objection  is  applicable  to  those 
cases  only  where  a  party  justifies  as  having  an  interest,  or  under 
one  who  has  an  interest,  by  title  at  the  time  of  the  act  complained 
of,  which  interest  would  therefore  be  put  in  issue  by  the  general 
traverse. 

No  case  or  precedent  cited  on  the  argument,  or  any  that  I  am 
aware  of,  is  against  this  construction  of  the  rule.  In  Cockerill  v. 
Armstrong,  indeed,  before  referred  to,  which  was  the  case  of  a  dis- 
tress, damage-feasant,  and  impounding.  Lord  Chief  Justice  "Willes 
says  (among  other  observations)  that  the  taking  away  and  impound- 
ing seemed  to  imply  a  claim  of  right ;  but  there  the  plea  stated  a 
seisin  in  fee  in  the  bailiffs  of  Scarborough,  which  would  have  been 
in  issue ;  and  it  is  on  that  ground  that  the  decision  of  the  court  is 


PLEAS   IN    BAR.  515 

to  be  supported ;  and  so  Lord  Chief  Justice  Eyre  seems  to  have 
thought  in  Jones  v.  Kitchin. 

It  appears  to  me,  then,  that  in  an  action  of  trespass  de  bonis 
asportatis,  a  similar  justification  to  the  present  might  be  traversed 
by  the  general  replication,  as  no  matter  of  interest  in  the  goods 
seized  would  be  included  in  that  traverse ;  and  the  only  remaining 
question  is,  whether  it  makes  any  difference  that  the  form  of  action 
is  in  replevin. 

Some  modern  treatises  lay  it  down  as  a  general  rule,  that  this 
form  of  pleading  is  inadmissible  altogether  in  replevin ;  ^  but  the 
authorities  cited  for  this  position  do  not  bear  it  out.  Finch's  Law, 
396,  is  one ;  after  stating  that  in  all  actions  of  trespass  merely 
transitory,  although  the  defendant  pleads  any  special  matter,  the 
plaintiff  may  reply  generally,  except  where  the  justification  is  by 
matter  of  record  or  writing  (by  which  he  means  writing  in  the  like 
nature)  or  by  some  title  or  license  from  the  plaintiff"  himself,  he 
proceeds  to  state  tliat  in  all  local  trespasses  where  title  is  claim' ;d, 
the  special  matter  must  be  answered ;  and  "  in  replevin,  which  is 
real,  the  title  or  special  matter  must  be  always  traversed."  I  do 
not  think  this  means  to  include  all  replevins,  but  those  only 
where  the  avowry  claims  title  to  the  realty.  In  Jones  v.  Kitchin, 
a  case  of  replevin,  the  plea  in  bar  was  held  bad,  not  because  it  was 
not  pleadable  in  replevin,  but  because  it  would  put  in  issue  a  title 
or  interest  in  land ;  and  the  proposition  in  the  judgment  in  that 
case,  that  this  plea  could  only  be  allowed  in  actions  for  personal 
injuries,  is  certainly  too  limited,  as  many  authorities  have  been 
cited  to  show  that  it  is  applicable  to  trespasses  to  goods. 

Indeed,  it  was  conceded  in  the  argument,  that  in  some  cases  of 
replevin  such  a  plea  in  bar  would  be  admissible ;  and  if  admissible 
at  all,  there  seems  to  me  no  reason  why  it  should  not  be  governed 
by  the  same  rules  as  in  an  action  of  trespass  to  goods  ;  viz.  that  it 
should  not  be  admitted  where  matter  of  record,  title,  interest,  or 
authority  from  the  plaintiff  should  be  put  in  issue  by  that  plea  in 
bar,  but  it  should  be  in  all  others. 

And  there  are  some  precedents  in  actions  of  replevin,  of  such  a 
plea  in  bar,  which  were  cited  on  the  argument.  In  Lilly's  Entries, 
349,  there  was  an  avowry  for  salvage,  with  a  prayer  of  judgment 
of  a  return,  and  such  a  plea  in  bar.  In  Wells  v.  Cotterill,  3  Lev. 
48  ;  Lev.  Entr.  185,  there  was  a  similar  plea  in  bar,  which  was  held 
bad  on  the  ground  that  it  traversed  matter  of  title,  but  it  does  not 
appear  to  have  been  objected  to  for  the  general  reason  that  such  a 
plea  was  inadmissible  in  that  form  of  action.     Upon  the  whole, 

1  1  Chitty  on  Pleading,  622,  5th  ed. 


516  CASES   ON   COMMON-LAW   PLEADING. 

therefore,  my  opmion  is,  that  the  plea  in  bar  is  good  in  this  case,  as 
it  puts  in  issue  no  matter  of  title  or  interest  in  the  goods,  and  there- 
fore that  there  should  be  judgment  for  the  plaintiff. 

Lord  Tenterden,  C.  J.  I  consider  the  system  of  special  pleading, 
which  prevails  in  the  law  of  England,  to  be  founded  upon  and  to  be 
adapted  to  the  peculiar  mode  of  trial  established  in  this  country,  the 
trial  by  the  jury;  and  that  its  object  is  to  bring  the  case,  before 
trial,  to  a  simple,  and  as  far  as  practicable,  a  single  question  of 
fact,  whereby  not  only  the  duties  of  the  jury  may  be  more  easily 
and  conveniently  discharged,  but  the  expense  to  be  incurred  by  the 
suitors  may  be  rendered  as  small  as  possible.  And  experience  has 
abundantly  proved,  that  both  these  objects  are  better  attained 
where  the  issues  and  matters  of  fact  to  be  tried  are  narrowed  and 
brought  to  a  point  by  the  previous  proceedings  and  pleadings  on 
the  record,  than  where  the  matter  is  left  at  large  to  be  established 
by  proof,  either  by  the  plaintiff  in  maintenance  of-  his  action,  or 
by  the  defendant  in  resisting  the  claim  made  upon  him.  I  am 
sensible  that  this  principle  has  not  always  been  kept  in  view  by 
the  courts,  and  that  there  have  been,  in  practice,  many  instances 
of  departure  from  it,  founded  upon  very  nice  and  subtle  distinc- 
tions. The  decisions  of  our  predecessors,  the  judges  of  former 
times,  ought  to  be  followed  and  adopted,  unless  we  can  see  very 
clearly  that  they  are  erroneous,  for  otherwise  there  will  be  no  cer- 
tainty in  the  administration  of  the  law;  and  if  I  had  found  the 
question  in  this  cause  distinctly  decided  in  any  former  case,  I 
should  have  thought  it  my  duty  to  abide  by  the  decision,  espe- 
cially in  a  matter  regarding  rather  the  course  of  proceeding  than 
a  question  of  pure  law.  But  after  an  attentive  consideration  of 
the  cases  quoted  at  the  bar,  and  of  such  others  as  I  have  been 
able  to  meet  with  after  a  very  diligent  search,  I  do  not  find  that 
this  has  been  done.  I  find,  indeed,  many  decisions  and  dicta  not 
easily  reconcilable  with  each  other,  founded,  as  I  have  already 
observed,  upon  very  nice  and  subtle  grounds,  and  not  capable  of 
being  reduced  to  any  plain,  or,  to  my  mind,  any  solid  principle. 
There  is  one  matter  in  which  all  the  authorities  in  our  books  agree. 
If  an  action  of  trespass  be  brought  for  turning  sheep  or  cattle  to 
feed  upon  land  in  possession  of  the  plaintiff,  and  the  defendant 
justifies  the  act  by  pleading  that  A.  B.,  his  landlord,  was  seised 
of  certain  lands,  and  demised  the  same  to  him  for  a  term  not 
yet  expired,  and  that  he  thereupon  entered  and  was  possessed  of 
the  demised  lands ;  and  then  goes  on  to  allege,  in  the  ordinary 
form  of  prescription,  that  his  landlord  had  right  of  common  on  the 
plaintiff's  land  for  cattle  levant  and  couchaut  on  the  demised  land. 


PLEAS   IN    BAT^.  517 

and  that  he  put  the  cattle  on  the  plaintiffs  land  in  the  exercise  of 
that  right ;  in  such  a  case,  I  say,  it  is  agreed  by  all  the  decisions 
that  the  plaintiff  cannot  reply  generally  de  injuria  sua  propria 
absque  tali  causa,  but  must  traverse  some  one  of  the  facts  allege<l 
in  the  plea,  admitting,  for  the  purpose  of  the  cause,  all  the  others. 
In  such  a  case,  at  least  three  separate  and  distinct  facts  are  alleged: 
the  seisin  of  the  landlord,  the  demise  to  the  defendant,  the  imme- 
morial right  of  common.  Every  one  of  these  three  is  necessary  to 
the  defence ;  but  the  plaintiff  must  elect  which  of  them  he  will 
deny,  and  when  he  has  so  done,  the  cause  goes  down  to  the  jury 
for  the  trial  of  that  single  fact ;  the  jury  are  not  embarrassed  by  a 
multiplicity  of  matter,  and  the  parties  are  relieved  from  much  of 
the  expense  of  proof,  to  which  they  would  be  subjected  if  all  the 
facts  alleged  in  the  plea  were  to  be  matters  cf  proof  and  contro- 
versy before  the  jury.  In  the  case  now  before  the  court,  the 
avowry  alleged  that  a  poor-rate  was  made ;  that  it  was  allowed  by 
the  justices ;  that  the  plaintiff  was  assessed  in  it  for  his  messuage 
in  which  the  distress  was  taken ;  that  this  messuage  was  within 
the  parish;  that  payment  of  the  assessment  was  demanded  and 
refused;  that  a  warrant  of  justices  was  issued  to  levy  it,  and 
that  the  goods  were  taken  under  the  authority  of  that  warrant. 
Many  distinct  and  independent  facts  are  thus  alleged  in  the 
avowry,  every  one  of  which  is  necessary  to  sustain  the  right  to 
take  the  goods,  and  to  entitle  the  defendant  to  have  them  returned 
to  him;  and  if  this  general  plea  in  bar  be  good,  the  defendant  must 
prove  every  one  of  them  at  the  trial,  and  the  jury  must  consider 
and  decide  upon  each  before  a  verdict  can  properly  be  given.  Now, 
I  think  I  might  safely  venture  to  ask  any  plain  and  unlettered  man, 
whether  he  could  find  any  difference  between  the  two  cases  that  I 
have  put,  either  in  common  understanding  or  in  sound  logic.  For 
myself,  I  must  say  that  I  can  find  none.  If  no  such  distinction 
exists  or  can  be  found,  why  should  a  different  rule  prevail  ?  why 
should  all  the  matters  of  fact  be  sent  together  to  the  jury  in  the 
one  case  and  not  in  the  other  ?  To  this  question  I  am  persuaded 
that  no  satisfactory  answer  could  be  given  to  tlie  mind  of  an  un- 
lettered man.  To  a  judge,  who  is  to  act  upon  the  decisions  of  his 
predecessors,  a  binding  if  not  a  satisfactory  answer  might  be  given, 
by  showing  that  the  matter  had  been  already  so  decided ;  but  this, 
as  I  conceive,  has  not  yet  been  done. 

I  find  it  decided,  that  where,  in  an  action  of  trespass,  the  defend- 
ant's plea  contains  merely  matter  of  excuse,  and  not  matter  of  riglit, 
a  replication  in  this  form  may  be  good :  and  to  this  there  may,  per- 
haps, be  no  objection  in  principle,  because  the  matter  of  excuse 


518  CASES    ON    COMMON-LAW   PLEADING. 

may,  and  generally  will  be,  the  only  matter  to  be  tried,  any  previ- 
ous allegation  being  a  matter  of  inducement  only.  I  find  it  also 
laid  down,  that  where  the  defendant  claims  any  interest  in  land  by 
his  plea,  this  general  replication  will  not  be  good ;  but  it  is  said 
that  it  may  be  otherwise  in  the  case  of  goods.  Why  there  should 
be  such  a  distinction  I  am  not  able  to  comprehend.  The  defendant 
in  this  case  does,  certainly  in  one  of  the  avowries,  claim  an  interest 
in  the  goods,  because  he  claims  to  have  them  returned  to  him ;  but 
I  do  not  rely  on  this.  For  the  reasons  which  I  have  thus,  perhaps 
imperfectly,  given,  and  which  are  founded  upon  what  I  conceive  to 
be  principle,  and  not  upon  authorities,  and  which,  therefore,  render 
it  unnecessary  for  me  to  advert  to  particular  cases,  I  feel  myself 
reluctantly  bound  to  differ  from  my  two  learned  brothers;  and  it  is 
a  satisfaction  to  me  to  know  that  my  opinion,  which  it  is  my  duty 
to  give  as  I  entertain  it,  cannot  prejudice  the  plaintiff,  because,  not- 
withstanding my  opinion,  the  judgment  of  the  court  on  these  de- 
murrers must  be  given  for  the  plaintiff.  I  would  only  add,  that 
my  view  of  the  case  would  be  the  same  if  this  were  a  replication 
to  a  plea  in  trespass,  or  if  the  defendant  had  pleaded  instead  of 
avowing,  and  so  had  not  claimed  a  return  of  the  goods. 

Judgment  for  the  plaintiff.^ 

(b)   Special  Traverses. 

A.,  as  heir  of  X.,  sues  B.  The  action  concerns  land 
demised  by  X.  to  B.  A.  sues  as  B.'s  landlord.  B.  must 
deny  A.'s  title.  This  he  cannot  do  directly  —  a  tenant  is 
estopped  directly  to  deny  his  landlord's  title.  Here,  then, 
is  a  case  where  injustice  will  be  done  unless  B.  is  given 
a  plea  which  shall  in  some  way  break  the  spirit  without 
breaking  the  letter  of  the  estoppel  rule. 

Let  B.  say,  in  substance, 

"  X.,  when  he  leased  to  me  this  land,  was  seised  thereof  for  life ;  he 
is  now  dead,  and  was  continuously  so  seised  until  he  died,  etc., 

Absque  hoc  (without  tliis)  the  reversion  of  this  land  belongs  to  A. 
and  his  heirs  as  A.  alleges, 

And  this  I  am  ready  to  verify,  and  pray  judgment  if  A.  is  to  have 
this  action  against  me." 

B.  has  not  directly  denied  A.'s  title ;  the  letter  of  the  es- 
toppel rule  is  unviolated,  and  the  plea  is  good. 

1  Affirmed  in  Exchequer  Chamber,  1  C.  &  M.  500;  s.  c.  9  Bing.  756.  — Ed. 


PLEAS   IN    BAK.  519 

"  A  technical  traverse,^  when  special,  begins  in  most  cases,  with 
the  words  '  ahsque  hoc,'  ^  (without  this) ;  which  words,  in  pleading, 
constitute  a  technical  form  of  negation.  A  traverse,  commencing 
with  these  words,  is  called  special ;  because,  when  it  thus  com- 
mences, the  inducement  and  the  negation  are,  regularly,  both 
special  —  the  former  consisting  of  new  special  matter,  and  the 
latter  pursuing,  in  general,  the  words  of  the  allegation  traversed, 
or  at  least,  those  of  them  which  are  material."  Gould,  Pleading, 
c.  vii.  s.  6. 

"  Thus,  if  to  debt  on  a  bond  the  defendant  pleads,  that  he  exe- 
cuted the  bond  by  duress  ;  and  the  plaintiff  replies,  that  the  defend- 
ant executed  it  of  his  own  free  will,  and  for  valuable  consideration, 
without  this,  that  he  executed  it  by  duress,  the  traverse  is  special. 
For,  so,  also,  if  the  defendant  pleads  title  to  land,  in  himself,  by 
alleging  that  J.  S.  died  seised  in  fee,  and  devised  the  land  to  him ; 
and  the  plaintiff  replies,  that  J.  S.  died  seised  in  fee,  intestate,  and 
alleges  title  in  himself,  as  heir  to  J.  S.  without  this,  that  J.  S.  de- 
vised the  land  to  the  defendant ;  the  traverse  is  special.  Here  the 
allegation  of  J.  S.'s  intestacy,  etc.,  forms  a  special  inducement ;  and 
the  ahsque  hoc,  with  what  follows  it,  is  a  special  denial  of  the  alleged 
devise,  i.  e.,  a  denial  of  it  in  the  words  of  the  allegation."  Gould, 
Pleading,  c.  vii.  s.  7. 

EFFECT  AND   OBJECT   OF   SPECIAL   TEAVEESES. 

"  The  use  and  object  of  a  special  traverse  is  the  next  subject  for 
consideration.  Though  this  rehc  of  the  subtle  genius  of  the  ancient 
pleaders  has  now  fallen  into  comparative  disuse,  it  is  still  of  oc- 
casional occurrence  ;  and  it  is  remarkable,  therefore,  that  no  author 
should  have  hitherto  offered  any  explanation  of  the  objects  for 
which  it  was  originally  devised,  and  in  a  view  to  which  it  con- 
tinues to  be,  in  some  cases,  adopted.  The  following  reiuarks  are 
submitted  as  those  which  have  occurred  to  the  writer  of  this  work 
on  a  subject  thus  barren  of  better  authority.  The  general  design 
of  a  special  traverse,  as  distinguished  from  a  common  one,  is  to  ex- 
plain or  qualify  the  denial,  instead  of  putting  it  in  the  direct  and 
absolute  form  ;  and  there  were  several  different  views,  in  reference 
to  one  or  other  of  which  the  ancient  pleaders  seem  to  have  been 
induced  to  adopt  this  course. 

1  "  A  technical  traverse  is  one  which  is  preceded  by  introductory  aflfirmative  matter, 
called  the  inducement  to  the  traverse ;  and  may  be  general  [fur  exani])le,  the  replica- 
tion de  injuria  sun  propria,  absque  tali  causa]  or  special."     Gould,  rieadiiiij,  c.  vii.  s.  4. 

2  In  some  cases  "  et  non "  instead  of  "  absque  hoc "  is  used.  Gould,  Pleadmg, 
c.  vii.  s.  8. 


520  CASES   ON   COMMON-LAW   PLEADING. 

"  First.  A  simple  or  positive  denial  may,  in  some  cases,  be  ren- 
dered improper  by  its  opposition  to  some  general  rule  of  law. 
Thus,  in  the  example  of  special  traverse  first  above  given  (an  action 
of  covenant  for  non-payment  of  rent  by  the  heir  of  a  lessor  against 
a  lessee,  wherein  it  became  material  for  the  tenant  to  deny  his  land- 
lord's title)  it  would  be  improper  to  traverse  in  the  common  form, 
viz, :  '  that  after  the  making  of  the  said  indenture,  the  reversion  of 
the  said  demised  premises  did  not  belong  to  the  said  E.  B.  and  his 
heirs,'  etc.,  because,  by  a  rule  of  law,  a  tenant  is  precluded  (or,  in 
the  language  of  pleading,  estopped)  from  alleging  that  his  lessor 
had  no  title  in  the  premises  demised ;  and  a  general  assertion  that 
the  reversion  did  not  belong  to  him  and  his  heirs  would  seem  to 
fall  within  the  prohibition  of  that  rule.  But  a  tenant  is  not  by 
law  estopped  to  say  that  his  lessor  had  only  a  particular  estate, 
which  has  since  expired.  In  a  case,  therefore,  in  which  the  decla- 
ration alleged  a  seisin  in  fee  in  the  lessor,  and  the  nature  of  the 
defense  was  that  he  had  a  particular  estate  only  (e.  g.,  an  estate 
for  life),  since  expired,  the  pleader  would  resort,  as  in  the  first  ex- 
ample, to  a  special  traverse  —  setting  forth  the  lessor's  limited  title 
by  way  of  inducement,  and  traversing  his  seisin  of  the  reversion  in 
fee  under  the  absque  hoc.  He  thus  would  avoid  the  objection  that 
might  otherwise  arise  on  the  ground  of  estoppel. 

"  Secondly,  A  common  traverse  may  sometimes  be  inexpedient, 
as  involving  in  the  issue  in  fact  some  question  which  it  would  be 
desirable  rather  to  develop  and  submit  to  the  judgment  of  the 
court  as  an  issue  in  law.  This  may  be  illustrated  by  the  second 
example  of  special  traverse  above  given.  In  that  case  it  would 
seem  that  a  lease  not  .expressing  any  certain  term  of  demise  had 
been  brought  to  the  ordinary  for  his  confirmation  ;  that  he-  had  ac- 
cordingly confirmed  it  in  that  shape  under  his  seal;  and  that  the 
instrument  was  afterwards  filled  up  as  a  lease  for  fifty  years.  The 
party  relying  upon  this  lease  states  tliat  the  demise  was  to  the  de- 
fendant for  the  term  of  fifty  years,  and  that  the  ordinary  '  ratified, 
approved,  and  confirmed  his  estate  and  interest  in  the  premises.' 
If  the  opposite  party  were  to  traverse  in  the  common  form,  — '  that 
the  ordinary  did  not  ratify,  approve  and  confirm  his  estate  and  in- 
terest in  the  premises,  etc.,'  and  so  tender  issue  of  fact  on  that 
point,  —  it  is  plain  that  there  would  be  involved  in  such  issue  the 
following  question  of  law,  viz. :  whether  the  confirmation  by  the 
ordinary  of  a  lease  in  which  the  length  of  the  term  is  not  at  the  time 
expressed  be  valid  ?  This  question  would  therefore  fall  under  the 
decision  of  the  jury,  to  whom  the  issue  in  fact  is  referred,  subject 
to  the  direction  of  the  judge  presiding  at  nisi  prius,  and  the  ulti- 


PLEAS    IN    BAR.  521 

mate  revision  of  the  court  in  bank.  Now  it  may,  for  many  reasons, 
be  desirable  that,  without  going  to  a  trial,  this  question  should 
rather  be  brought  before  the  court  in  the  first  instance,  and  that 
for  that  purpose  an  issue  in  law  should  be  taken.  The  pleader, 
therefore,  in  such  a  case,  would  state  the  circumstances  of  the  trans- 
action in  an  inducement,  —  substituting  a  special  for  a  common  trav- 
erse. As  the  whole  facts  thus  appear  on  the  face  of  the  pleading, 
if  his  adversary  means  to  contend  that  the  confirmation  was  under 
the  circumstances  valid  in  point  of  law,  he  is  enabled  by  this  plan 
of  special  traverse  to  raise  the  point  by  demurring  to  the  replica- 
tion, on  which  demurrer  a  question  of  law  arises  for  the  adjudica- 
tion of  the  court. 

"  By  these  reasons,  and  sometimes  by  others  also,  which  the  reader, 
upon  examination  of  different  examples,  may,  after  these  suggestions, 
readily  discover  for  himself,  the  ancient  pleader  appears  to  have 
been  actuated  in  his  frequent  adoption  of  an  inducement  of  new 
affirmative  matter,  tending  to  explain  or  qualify  the  denial.  But 
though  these  reasons  seem  to  show  the  purpose  of  the  inducement, 
they  do  not  account  for  the  two  other  distinctive  features  of  the 
special  traverse,  viz.,  the  absque  Jioc,  and  the  conclusion  witli  a  veri- 
fication. For  it  will'  naturally  suggest  itself  that  the  affirmative 
matter  might,  in  each  of  the  above  cases,  have  been  pleaded  per  se, 
without  the  addition  of  the  absque  hoc.  So,  whether  the  absque  hoc 
were  added  or  not,  the  pleading  might,  consistently  with  any  of  the 
above  reasons,  have  tendered  issue  like  a  common  traverse  instead 
of  concluding  with  a  verification.  These  latter  forms  were  dic- 
tated by  other  principles.  The  direct  denial  under  the  absque  hoc 
was  rendered  necessary  by  this  consideration,  that  this  affirmative 
matter  taken  alone  would  be  only  an  indirect  (or,  as  it  is  called  in 
pleading,  argumentative)  denial  of  the  precedent  statement ;  and  by 
a  rule  which  will  be  considered  in  its  proper  place  hereafter,  all 
argumentative  pleading  is  prohibited.  In  order,  therefore,  to  avoid 
this  fault  of  argumentativeness,  the  course  adopted  was  to  follow 
up  the  explanatory  matter  of  the  inducement  with  a  direct  denial. 
Thus,  to  allege,  as  in  the  first  example,  that  E.  B.  was  seised  for 
life,  would  be  to  deny  by  implication,  but  by  implication  only,  that 
the  reversion  belonged  to  him  in  fee ;  and  therefore,  to  avoid  argu- 
mentativeness, a  direct  denial  that  the  reversion  belonged  to  him 
in  fee  is  added  under  the  formula  of  absque  hoc.  With  respect  to 
the  verification,  this  conclusion  was  adopted  in  a  special  traverse  in 
a  view  to  another  rule,  of  which  there  will  also  be  occasion  to  speak 
hereafter,  viz.,  that  wherever  new  matter  is  introduced  in  a  plead- 
ing, it  is  improper  to  tender  issue,  and  the  conclusion  must  conse- 


522  CASES    ON    COMMON-LAW   PLEADING. 

quently  be  with  a  verification.  The  inducement  setting  forth  new 
matter  makes  a  verification  necessary  in  conformity  with  that  rule." 
Stephen,  Pleading,  Andrews'  1st  ed.  251. 

BRUDNELL  v.   ROBERTS. 
In  the  Common  Pleas.     1762. 
Reported  2  Wilson,  143. 
A  tenant  is  estopped  directly  to  deny  his  landlord's  title. 

Covenant  brought  by  the  plaintiff  upon  a  lease  for  years,  as 
heir  in  reversion  in  fee  to  his  father,  and  breach  assigned  for  want 
of  repairs  ;  defendant  pleads  that  the  father  when  he  made  the 
lease  to  him  was  only  a  tenant  for  life,  and  that  the  father  being 
dead  the  lease  is  determined,  absque  hoe  that  after  making  the  said 
indenture  of  lease  the  reversion  belonged  to  James  Brudnell  (the 
father  and  his  heirs),  as  the  plaintiff  hath  alleged  in  his  declaration. 
Demurrer  and  joinder. 

It  was  argued  by  Serjeant  Hewitt  for  the  plaintiff,  that  this  plea 
was  bad,  because  wherever  a  lessee  accepts  a  lease  for  years  by 
indenture,  he  shall  be  estopped  to  say  that  the  lessor  nil  hahuit 
in  tenementis,  and  the  plaintiff  need  not  reply  that  estoppel, 
but  may  demur,  because  the  declaration  is  on  the  indenture, 
and  the  estoppel  appears  on  the  face  of  the  record ;  other- 
wise if  he  had  declared  quod  cum  demisset,  etc.,  1  Salk.  277, 
Kemp  V.  Goodall ;  and  this  is  clearly  law,  for  so  is  Co.  Lit.  47 ; 
Cro.  Jac.  312  ;  Cro.  Eliz.  362.  And  not  only  the  lessor  himself, 
but  the  grantee  of  the  reversion,  and  all  parties  claiming  under 
them,  will  have  the  benefit  of  the  estoppel,  which  (he  said)  ran 
along  with  the  lands  ;  and  that  the  plaintiff  claiming  as  heir  under 
the  lessor,  his  ancestor  stands  in  his  place.  2dly,  It  was  urged  for 
the  plaintiff  that  the  traverse  was  defective  and  uncertain;  but 
I  heard  nothing  said  to  show  that  it  was  uncertain. 

On  the  side  of  the  defendant  it  was  argued  by  Serjeant  Nares, 
that  this  was  an  action  of  covenant  brought  by  the  plaintiff  upon 
an  indenture  of  lease  for  years  made  by  the  father  of  the  plaintiff 
to  the  defendant,  and  breach  assigned  for  want  of  repairs,  upon  a 
covenant  in  the  lease  ;  the  defendant  pleads  that  the  plaintiffs 
father  the  lessor  was  only  tenant  for  life,  that  he  is  dead,  and  the 
lease  is  determined,  and  traverses  as  above ;  that  the  lease  being 
now  at  an  end,  there  is  an  end  of  all  the  covenants  therein,  and  of 
this  action;  a  lease  for  years  by  tenant  for  life  is  so  absolutely 


PLEAS   IN    BAR.  523 

determined,  that  no  acceptance  of  rent  by  the  successor  to  the 
land  can  make  it  good.  Co.  Lit.  341  b.  Nares,  Serjeant,  admitted 
that  during  the  life  of  the  tenant  for  life  (of  the  lessor)  and  the 
continuance  of  the  lease,  the  defendant  would  have  been  estopped 
to  say  he  had  not  the  reversion  in  him,  but  he  being  dead,  and  the 
lease  thereby  at  an  end  the  lessee  is,  as  it  were,  unmuzzled,  and  is 
not  estopped  to  plead  the  truth,  which  he  has  done  by  this  plea,  in 
confessing  the  lease  and  avoiding  it  :  and  of  that  opinion  was  the 
whole  court ;  they  also  held  that  the  traverse  was  well  taken ;  and 
judgment  was  given  for  the  defendant  per  totani  curiam.  See  Co. 
Lit.  47  b,  si  non  que  le  lease  soit  per  fait  indent,  etc.,  very  apposite 
to  the  point  of  estoppel.  N.  Clive,  Justice,  said,  the  defendant 
might  either  traverse  that  the  father  was  not  seised  of  the  rever- 
sion in  fee,  or  that  it  did  not  descend  to  the  plaintiff;  qua  fuit 
concessum. 

FOKTESCUE  v.   HOLT. 

Ix  THE  King's  Bench.    1672., 

Reported  ln  1  VENxras,  213. 

A  scire  facias  was  brought  upon  a  judgment  of  £1,000,  as  ad- 
ministrator of  J.  S. 

The  defendant  pleaded  that  before  the  administration  committed 
to  the  plaintiff,  viz.,  such  a  day,  etc.,  administration  was  granted  to 
J.  N.,  who  is  still  aUve  at  D.,  and  demandeth  judgment  of  the 
writ. 

The  plaintiff  replies,  J.  N.  died,  etc.,  and  de  hoc  ponit  se  super 
patriam.     And  to  that  the  defendant  demurs. 

For  that  he  ought  to  have  traversed  absque  hoe,  that  he  was 
alive ;  for  though  the  matter  contradicts,  yet  an  apt  issue  is  not 
formed  without  an  affirmative  and  a  negative ;  and  so  said  the 
court. 

PALMER  V.   EKINS. 

In  the  King's  Bench.     1728. 

Reported  2  Lord  Raymond,  1550. 

A.  V.  X.  Covenant  for  non-payment  of  rent.  Declaration  :  M.  was  seised 
in  fee  of  Blackacre,  and  leased  to  X.  with  covenant  to  pay  rent.  X.  entered, 
and  continued  possessed.  M.  assigned  tlie  reversion  to  A.  The  rent  is  due. 
Plea  in  form  of  a  special  traverse  confessing  that  M.  was  a  life  tenant,  and 
leased  to  X. ;  and  later  conveyed  his  reversion  to  A.,  and  later  died,  the  re- 
version in  A.  dying  with  him.     The  plea  is  bad. 

The  plaintiff,  Henry  Palmer,  as  assignee  of  John  Palmer,  brought 
an  action  of  covenant  against  Elizabeth  Ekins  for  non-payment  of 


524  CASES    ON    COMMOX-LAW   PLEADING. 

rent,  wherein  he  declared  that  John  Palmar  was  seised  in  fee  of  the 
messuage,  etc.,  and  being  so  seised,  the  27th  of  March,  1716,  by 
indenture  made  between  him  on  the  one  part,  and  the  defendant  on 
the  other  part  (one  part  of  which  indenture,  sealed  by  the  defend- 
ant, the  plaintiff  produces  in  court),  demised  to  the  defendant  a 
messuage  in  the  parish  of  St.  Michael  Crooked  Lane,  London, 
for  twelve  years  from  Lady-day,  1716,  rendering  £18  per  annum 
during  the  said  term  to  the  said  John  Palmer,  his  heirs  and 
assigns,  payable  at  four  quarterly  payments  ;  that  the  defendant 
by  the  said  indenture  covenanted  to  pay  the  said  rent  at  the  days 
and  times  in  the  said  indenture  mentioned  to  the  said  John  Palmer, 
his  heirs  and  assigns ;  that  by  virtue  of  this  demise  the  defendant 
entered  and  continued  possessed  of  this  messuage,  etc.,  till  after  the 
26th  of  March,  1725.  That  John  Palmer,  being  seised  of  the  re- 
version in  fee,  by  lease  and  release,  dated  the  22d  and  23d  of 
November,  1723,  conveyed  it  to  Henry  Palmer,  the  plaintiff  in  fee; 
then  the  plaintiff  assigns  his  breach,  in  the  defendant's  not  paying 
three-quarters  rent  due,  and  ending  Lady-day,  1725.  The  defend- 
ant, protestando  that  John  Palmer  did  not  make  such  lease,  for  plea 
says,  that  John  Palmer  was  seised  in  fee  of  this  messuage  19th  of 
November,  1706,  and  being  so  seised  by  lease  and  release  dated  the 
19th  and  20th  of  November,  1706,  conveyed  this  messuage,  etc.,  to 
one  John  Bragg,  in  fee  ;  and  traverses,  absque  hoe,  that  John 
Palmer  ad  aliquod  tempus  post  prcedictum  20th  of  November,  1706, 
seisitusfuit  de  messiiagio  prcedicto  in  dominico  sua  ut  de  feodo,modo 
et  forma  as  the  plaintiff  declares.  To  this  plea  the  plaintiff  de- 
murred generally,  and  the  defendant  joined  in  demurrer. 

This  case  was  argued  at  several  times  by  Mr.  Serjt.  Girdler,  Mr. 
Serjt.  Baines,and  Mr.  Fazakerley,  for  the  plaintiff,  and  by  Mr.  Serjt. 
Belfield,  Mr.  Usher,  and  Mr.  Filmer,  for  the  defendant.  And  the 
26th  of  November,  1728,  I,  at  my  brothers'  desire,  delivered  the 
opinion  of  the  court,  that  the  plea  was  ill,  and  the  plaintiff  ought 
to  have  judgment.     And  we  resolved, 

That  the  defendant  could  not  plead,  John  Palmer  nil  habuit  in 
tenementis  at  the  time  of  the  lease  made,  to  an  action  brought  by 
John  Palmer,  supposing  he  had  not  conveyed  to  the  plaintiff: 
because  it  appearing  upon  the  face  of  the  declaration  that  the 
lease  was  made  to  her  by  indenture  made  between  John  Palmer 
and  her,  which  she  had  executed  ;  she  is  estopped  by  the  indenture. 
And  for  that  purpose  the  case  of  Kemp  v.  Goodhall,  Pasch.  4  Annse, 
B.  Pt.  6,  1  Ld.  Ptaym.  1154,  in  debt  for  rent  by  indenture,  if  the  de- 
fendant pleads  nil  habuit  in  tenementis,  the  plaintiff  may  demur 
and  need  not  reply  the   estoppel,   because   it   appears   upon   the 


PLEAS    IX    BAR.  525 

declaration  ;  but  if  the  defendant  plead  nil  hahuit  in  tenemenlis, 
and  the  plaintiff  replies  habuit,  etc.,  the  jury  may  find  the  truth, 
notwithstanding  the  indenture.'- 

Til  at  this  plea  of  the  defendant  amounted  to  a  special  nil  hahuit 
in  tenementis,  for  by  the  inducement  to  the  traverse  she  shows  that 
John  Palmer,  in  1706tlong  before  he  made  the  lease  to  the  defend- 
ant, which  was  in  1716,  conveyed  in  fee  to  Bragg.  If  so,  John 
Palmer  had  nothing  in  the  messuage,  etc.,  when  he  made  the  lease. 
For  an  estate  in  fee-simple  is  always  intended  to  continue,  unless 
it  be  shown  to  be  conveyed  away  or  determined.  Therefore  this 
plea  amounts  to  a  special  nil  hahuit  in  tenemetitis,  which  is  no 
more  to  be  admitted  to  be  pleaded  by  a  lessee  by  indenture,  than  a 
general  nil  hahuit  in  tenementis.  But  the  defendant,  by  a  proper 
inducement,  might  have  made  this  traverse  good  ;  as  if  he  had 
pleaded  in  his  inducement  to  the  traverse  that  J.  S.  was  seised  of 
the  messuage  in  fee,  and  being  so  seised  conveyed  it  to  John  Palmer 
for  his  life,  and  that  John  Palmer  being  so  seised,  made  the  lease 
to  the  defendant,  and  afterwards  conveyed  to  the  plaintiff,  and  that 
then  John  Palmer  died  ;  whereby  he  would  have  showed  that  an 
interest  passed  by  the  lease  to  the  defendant  as  long  as  John 
Palmer  lived,  and  that  by  his  death  the  lease  was  determined ; 
then  such  traverse  as  in  the  present  case  would  have  been  good. 
For  the  estoppel  that  appeared  upon  the  face  of  the  declaration, 
would  have  been  avoided  by  showing  an  interest  past ;  and  such 
plea  would  not  have  amounted  to  anil  habuit  in  tenementis,  because 
an  estate  for  life  would  have  appeared  to  have  been  in  John 
Palmer.  But  no  interest  appears  to  be  in  John  Palmer  in  this 
case,  when  the  lease  was  made  to  the  defendant ;  nor  can  the 
court  intend  there  was  any  interest  in  him,  since  the  plea  sets  out 
a  conveyance  before  the  lease  to  Bragg  in  fee  simple,  which  estate 
must  be  intended  to  continue.^ 

1  A  portion  of  the  case  uot  relating  to  the  pleadings  is  omitted.  — Ed. 

2  See  Brudnell  ;,•.  Roberts,  2  Wils.  143.  — Ed. 


CHAPTEE   X. 

KULES   OF   PLEADING. 

DEPARTURE. 

"  A  DEPARTURE  in  pleading  is  said  to  be  when  the  second  plea 
containeth  matter  not  pursuant  to  his  former,  and  which  fortifieth 
not  the  same,  and  thereupon  it  is  called  deccssus,  because  he  de- 
parteth  from  his  former  plea ;  and  therefore  whensoever  the  re- 
joynder  (taking  one  example  for  all)  containeth  matter  subsequent 
to  the  matter  of  the  barre,  and  not  fortifying  the  same,  this  is 
regularly  a  departure,  because  it  leaveth  the  former,  and  goeth  to 
another  matter.  As  if  in  an  assise  the  tenant  plead  a  discent  from 
his  father,  and  giveth  a  colour,  the  demandant  intituleth  himselfe 
by  a  feoffement  from  the  tenant  himselfe,  the  plaintife  cannot  say, 
that  that  feoffement  was  upon  condition,  and  to  shew  the  condition 
broken;  for  that  should  be  a  cleare  departure  from  his  barre,  be- 
cause it  containeth  matter  subsequent.  But  in  an  assise,  if  the 
tenant  pleadeth  in  barre,  that  I.  S.  was  seised  and  infeoffed  him, 
etc.,  and  the  plaintife  sheweth  that  he  himself  was  seised  in  fee, 
until  by  I.  S.  disseised,  who  infeoffed  the  tenant,  and  he  reentered, 
the  defendant  may  plead  a  release  of  the  plaintife  to  I.  S.  for  this 
doth  fortifie  the  barre."     Coke  upon  Littleton,  304  c. 


/ 


WESTON  V.    CARTER. 
In  the  Common  Pleas.     1658  or  1660. 
Reported  1  Siderfin,  9. 
Departure  defined. 

Upon  the  replication  the  defendant  avows  in  0.  for  rent  charge 
granted  out  of  the  manor  of  S.  And  says  that  the  manor  of  S.  lies  in 
S.  and  O.  within  the  county  of  Surrey.  Lady  Weston  says  that  she 
hath  recovered  on  writ  of  dower  and  hath  a  third  part  assigned  in 
S.  And  shows  that,  etc.  And  so  was  seised  as  tenant  in  dower 
until  the  plaintiff  distrained  her  cattle  in  a  place  called  the 
Warren  in  S. 

And  it  was  argued  at  bar  by  Earle  and  Barnard,  first,  if  this  was 
departure,  and,  second,  what  is  effected  by  the  Demurrer.     And  by 


RULES   OF   PLEADING.  527 

the  court  [it  was  held]  this  is  departure  from  the  declaration.  And 
it  was  agreed  that  in  every  replication  there  ought  to  be  a  town 
and  a  place  assigned  according  to  Reade  and  Hawkes's  Case,  Hob.  16. 
And  here  the  Warren  is  the  place  assigned,  and  S.  is  the  town,  and 
for  that  it  cannot  be  in  0.  where  the  avowry  is,  for  the  one  town 
cannot  be  in  the  other  town,  nor  the  one  place  assigned  in  the  other 
place  assigned.  And  here  0.  will  be  deemed  to  be  a  town  insomuch 
as  the  avowry  is  supposed  there,  rather  even  more  than  a  Parsonage- 
house  will  be  deemed  a  town,  and  yet  it  is  adjudged  a  town,  Cro.  2, 
274.  Lawrence  and  Johns  Case.  Now  S.  is  a  town  or  not  a,  town  ; 
if  not  a  town  the  replication  is  not  good,  because  a  town  is  wanting, 
and  if  it  is  a  town  it  cannot  be  in  the  town  of  0.  And  Bridgman, 
Chiefe  Justice,  says  that  as  well  a  place  assigned  as  a  town  ought  to 
be  in  the  replication,  for  that  both  are  traversable.  But  if  there  is 
no  place  assigned  by  name  and  the  Plaintiff  passes  it  over  and  does 
not  demur,  that  is  good,  and  so  he  says  the  several  places  can  be 
reconciled. 

Now  admitting  0.  is  a  Parish  and  that  S.  is  in  the  Parish  of  0., 
yet  the  Plaintiff  hath  not  title,  for  she  hath  alleged  a  recovery  upon 
a  writ  of  dower  of  land  in  S.,  which  is  a  town,  which  Recovery 
does  not  extend  to  land  in  0.  For  if  the  Parish  of  D.  contains  8 
'towns,  to  wit,  the  town  of  D.  and  of  C.  etc.  And  a  fine  is  levied  or 
a  recovery  had  of  laud  in  D.,  this  does  not  extend  to  lands  in  the 
other  towns  within  the  Parish  outside  of  the  town  of  D.,  which 
was  agreed  by  the  Court.  Cro.  2,  120.  Starke  and  Fox's  Case 
agreeing. 

And  when  she  avers  that  the  Warren  in  S.  is  in  0.,  this  averment 
is  void  for  this,  that  it  is  repugnant  and  impossible  for  this  that 
the  one  town  cannot  be  in  the  other  town  as  above.  Note  if  D.  be 
called  a  parish,  that  is  a  town  and  is  sufficient,  for  it  will  not  be 
inferred  that  there  are  several  towns  within  the  Parish  if  it  be  not 
shown.     1  Inst.  125  b.  and  Hob.  6. 

And  Hyde,  Justice,  says  that  a  departure  is  when  the  second 
plea  contains  novel  matter  that  does  not  fortify  the  first. 

2.  It  was  objected  that  thro'  this  demurrer  the  Defendant  hath  • 
confessed  the  averment  of  the  Plaintiff,  but  it  was  replied  and  re- 
solved that  notwithstanding  it  is  often  times  said  that  a  demurrer 
is  a  confession,  etc.,  yet  this  is  not  a  confession  of  nny  thing  except 
that  which  is  well  pleaded.  For  things  not  well  pleaded,  which  is 
the  cause  of  the  demurrer,  are  not  by  this  confessed,  but  left  to  be 
determined  by  the  Court.  And  judgment  in  the  principal  case  was 
given  for  the  Defendant.  Although  Atkins  when  he  was  justice 
here  was  of  the  contrary  opinion. 


528  CASES    ON    COMJilON-LAW   PLEADING. 

MOLE   V.   WALLIS,    OR   BOLD   v.    WARREN. 

In  the  King's  Bench.     16G2. 

Reported  1  Levixz,  81. 

Covenant  on  an  indenture  of  apprenticeship  to  serve  him  seven 
years,  which  he  liad  not  done,  but  departed.  The  defendant  pleads 
infancy  ;  the  plaintiff  replies  the  custom  of  London,  for  infants  to 
bind  themselves  apprentices ;  the  defendant  demurs  ;  and  whether 
this  was  a  departure?  was  the  question.  And  Wyndham  and  Foster, 
Chief  Justice  at  one  time,  seemed  that  it  was  not,  it  being  laid  in 
London,  where  the  custom  is  known  ;  and  Foster  cited  a  case,  where 
infancy  being  pleaded  to  a  feoffment,  the  plaintiff  replied  the  custom 
of  gavelkind  in  Kent ;  that  an  infant  may  make  a  feoffment  at 
fifteen,  and  the  action  being  laid  in  Kent,  it  was  resolved  to  be 
good.  Twysden  and  Mallet  on  the  contrary  said,  that  which  is 
pleaded  generally  as  the  common  law  cannot  be  maintained  by 
custom,  but  is  a  departure,  and  cited  Yel.  14 ;  Plow.  Com.  105  ; 
Mich.  6  Hen.  VIL  pi.  4 ;  Hil.  21  Hen.  YIL  pi.  29  ;  2  Cro.  494  ;  Hutt. 
63,  64.  But  they  agreed,  that  if  one  pleads  a  statute,  and  the  other 
says  that  it  is  repealed,  the  other  may  say  that  it  is  revived  by 
another  statute ;  or,  if  a  man  pleads  a  statute,  and  the  other  says » 
it  was  to  continue  but  till  such  a  time,  which  is  expired,  the  other 
may  say,  that  the  first  statute  was  afterwards  made  perpetual,  be- 
cause it  is  only  fortifying  of  the  first  matter.  And  in  Hilary  time 
first  following,  the  party  prayed  leave  to  discontinue. 


\ 


OWEN  AND  ANOTHER   v..   REYNOLDS.^ 
In  the  King's  Bench.     1732.  ' 

Reported  Fortescue,  341. 

Debt  on  bond  conditioned  to  save  harmless  from  tonnage  of  coals 
due  to  William  Biddle.  Defendant  pleads  non  damnificiat ;  plain- 
tiff replies  that  Biddle  distrained  for  said  coals,  and  defendant 
rejoins  that  nothing  was  due  to  Biddle  for  tonnage  ;  this  held  to 
be  a  good  rejoinder,  and  no  departure,  for  it  fortifies  the  plea,  and 
gives  a  good  reason  why  he  was  not  damnified. 

DUPLICITY. 

"  The  plea  of  every  man  shall  be  construed  strongly  against  him 
that  pleadeth  it,  for  everie  man  is  presumed  to  make  the  best  of  his 
owne  case  ;  ambiguum  placitum  interpretari  debet  contra  proferen- 
tu)n."     Coke  upon  Littleton,  303  b. 


\  RULES   OF   PLEADING.  529 

"  Tlie  plea  that  contains  duplicity  or  mnltiplicity  of  distinct 
matter  to  one  and  the  same  thing,  whereunto  severall  answers 
(admitting  each  of  them  to  be  good)  are  required,  is  not  allowable 
in  law.  And  this  rule  you  see  extendeth  to  pleas  perpetual  or 
peremptory,  and  not  to  pleas  dilatory  ;  for  in  their  time  and  place  a 
man  may  use  divers  of  them  ;  and  hereof  ancient  writers  speak 
notably  :  '  Sicut  actor  una  actione  debet  experiri  faltem  ilia  durante, 
sic  oportet  tenentem  una  exceptione,  dum  tamen  peremptoria  (quod 
de  dilatoriis  non  est  tenendum)  ;  quia  si,  licerit  pluribus  uti  excep- 
tionibus  peremptoriis  simul  semel,  sicut  fieri  poterit  in  dilatoriis, 
sic  sequeretur,  quod  si  in  probatione  unius  defecerit,  ad  aliam  pro- 
bandum  possit  habere  recursum,  quod  non  est  permissibile,  non 
magis  quam  aliquem  se  defendere  duobus  baculis  in  duello,  cum 
unus  tantum  sufficiat.'  But  where  the  tenant  or  defendant  may 
plead  a  generall  issue,  thereupon  the  generall  issue  pleaded,  he  may 
give  in  evidence  as  many  distinct  matters  to  barre  the  action 
or  riglit  of  the  demandant  or  plaintife,  as  he  can."  Coke  upon 
Littleton,  303  b. 

HAREBOTTLE   v.   PLACOCK.^ 

In  the  King's  Bench.     1607. 

Reported  Choke's  James,  21. 

Ejectment  of  land,  and  a  coal-pit  in  the  same  land.  The  defend- 
ant pleaded  not  guilty,  and  it  was  found  against  him. 

It  was  now  moved  in  arrest  of  judgment,  that  the  declaration  was 
not  good,;  for  he  cannot  demand  the  land  itself,  and  a  coal-pit  in  the 
same  landj  for  that  is  Ms  petitum.  —  But  the  court  held  it  to  be 
good,  because  it  is  a  personal  action,  and  he  demands  nothing 
certainly.  / 

DAME   AUDLEY'S   CASE. 

In  the  Queen's  Bench.     1561. 

Reported  in  Moore,  25. 

Detinue.  The  defendant  says  that  after  the  bailment  to  him  by 
the  plaintiff  she  married  Lord  Audley,  who  during  the  marriage 
released  him  of  all  actions.  Nichols.  The  plea  seems  double,  for 
he  has  pleaded  two  matters  in  bar  ;  first,  property  in  the  husband 
by  the  marriage  ;  second,  release  by  the  husband.  And  it  was  held 
by  all  the  judges  that  the  plea  was  not  double,  since  he  could  not 
plead  the  release  without  pleading  that  it  was  after  the  marriage, 
otherwise  it  was  not  material,  wherefore,  etc. 

1  Part  of  the  case,  not  bearing  upon  Duplicity,  omitted. 
34 


530  CASES   ON   COMMON-LAW   PLEADING. 

GAILE   V.   BETTS. 

In  the  Common  Pleas.     1676. 

Reported  in  3  Salkeld,  142. 

Debt  upon  bond,  the  defendant  craved  oyer  of  the  condition, 
which  was  to  pay  £40  so  long  as  the  defendant  should  enjoy  such 
an  office,  by  quarterly  payments  every  year ;  that  he  pleads  that 
the  office  was  granted  to  three  for  their  lives,  and  that  he  enjoyed 
it  as  long  as  they  lived,  and  so  long  he  paid  the  said  rent  quarterly. 
The  plaintiff  replied  that  he  (the  defendant)  enjoyed  the  office 
longer,  and  that  he  had  not  paid  the  money  by  quarterly  payments  ; 
and  upon  demurrer  to  the  replication,  it  was  objected  that  it  was 
double.  Sed  per  curiam,  it  is  not,  for  the  defendant  cannot  in  his 
rejoinder  tender  an  issue  upon  payment  of  the  money,  because  that 
would  be  a  departure  from  his  plea. 

SAUNDERS  V.   CRAWLEY. 

In  the  King's  Bench.     1614. 

Reported  1  Rolle,  112. 

Saunders  brought  debt  on  an  obligation  for  non-performance  of 
articles  which  were  to  pay  so  much  at  two  fixed  days  in  equal 
portions,  which  the  defendant  says  he  paid  accordingly.  The 
plaintiff  replies  that  he  has  not  paid  accordingly,  which  is  double 
plea,  quodfuit  concessum  per  curiam,  for  this  goes  to  both  days. 

HUMPHREYS   v.   BETHILY. 

In  the  Common  Pleas.     1690. 

Reported  2  Ventris,  198,  222. 

In  an  action  of  debt  upon  a  penal  bill,  where  the  defendant  was  to 
pay  10s.  on  the  11th  of  June,  and  10s.  more  upon  the  10th  of  July 
next  following,  and  10s.  every  three  weeks  after,  till  a  certain  sum 
were  satisfied  by  such  several  payments.  And  for  the  true  pay- 
ment thereof  the  defendant  obliged  himself  in  the  penal  sum  of 
£7. 

The  plaintiff  in  facto  dicit  pleaded,  that  the  defendant  did  not 
pay  the  said  sum,  or  any  part  thereof,  upon  the  several  days  afore- 
said, unde  actio  accrevit  for  the  £7. 

The  defendant  pleaded  that  he  paid  10s.  upon  the  11th  of  June, 
et  hoc  paratus  est  verificare,  etc. 


RULES   OF  PLEADING.  531 

The  plaintiff  replied  that  he  did  not  pay  it,  et  hoc  petit  quod  in- 
quiratur  per  2Jatriam.     To  which  the  defendant  demurred. 

The  plea  was  held  altogether  insufficient. 

But  then  Pollexfen,  C.  J.,  observed  that  the  declaration  was 
naught ;  for  he  should  have  declared  that  the  defendant  failed  in 
payment  of  one  of  the  sums,  which  would  have  been  enough  to 
have  entitled  him  to  the  penalty  ;  but  he  says,  the  said  several 
sums  of  money,  or  any  of  them,  and  this  is  double ;  and  he 
inclined  that  it  was  not  aided  by  answering  over,  or  by  the 
general  demurrer. 

Adjornatur. 

Vide  Saunders  and  Crawley. 

The  court  now  delivered  their  opinions  that  the  doubleness  in 
the  declaration  was  cured  by  answering,  and  no  exception  can  be 
taken  to  it  upon  the  general  demurrer.  Saunders  and  Crawley  is 
the  same  with  this. 

Judicium  pro  quer '. 


JOHN   EATHBONE   v.    SAMUEL   RATHBONE. 
Supreme  Judicial  Court,  Massachusetts.     1827. 
Reported  in  5  Pickering,  221. 
Mere  surplusage  will  not  make  a  pleading  double. 

Debt.  The  defendant  pleaded  in  abatement,  that  the  writ,  "at 
the  time  when  it  was  put  into  the  officer's  hands  for  service,  and  at 
the  time  when  it  was  served,  by  attaching  the  property  of  the  said 
Samuel,  contained  no  count  or  declaration ;  nor  was  there  any  cause 
of  action  in  any  way  or  manner  set  forth." 

The  plaintiff  demurred  because  the  plea  was  double,  in  averring 
that  there  was  no  count,  etc.,  in  the  writ  both  at  the  time  when  it 
was  put  into  the  officer's  hands  and  when  it  was  served  ;  also  in 
averring  that  there  was  no  count  or  declaration,  nor  any  cause  of 
action  set  forth  in  the  wTit. 

Ashmun,  for  the  plaintiff.  A  plea  is  double  when  either  of  two 
matters  alleged  is  alone  sufficient.  Here,  if  the  want  of  a  declara- 
tion when  the  writ  was  served  was  fatal,  the  want  of  one  when  it 
was  put  into  the  officer's  hands  was  likewise,  and  vice  versa. 
Thayer  v.  Eogers.  A  plea  is  double  when  the  other  party  cannot 
make  one  answer  to  it.  Here  there  may  have  been  a  declaration 
,when  the  writ  was  put  into  the  officer's  hands,  and  not  when  it 
was  served;  and  vice  versa.  The  plea  alleges  too  that  the  writ 
contained  no  declaration  or  any  cause  of  action.     If  these  mean 


532  CASES   ON    COMMON-LAW    PLEADING. 

the  same  thing,  then  the  same  defence  is  repeated ;  which  infor- 
mality is  fatal  to  a  plea  in  abatement.  But  they  do  not  mean  the 
same  thing.  A  declaration  is  a  formal  statement  of  the  cause  of 
action.  In  assumpsit  upon  an  account  annexed,  if  the  account  is 
left  out,  there  is  a  declaration,  but  no  cause  of  action  ;  and  if  the 
writ  has  only  the  account  annexed,  there  is  a  cause  of  action  but 
no  declaration.     The  plea,  therefore,  is  double. 

Mills  and  Newcomb,  on  the  same  side. 

Wells  and  Maxwell,  for  the  defendant. 

The  opinion  of  the  court  was  drawn  up  by 

Parker,  C.  J.  We  consider  the  plea  in  abatement  good,  notwith- 
standing the  causes  assigned  in  support  of  the  special  demurrer. 
It  is  immaterial  what  the  writ  contained  when  it  was  first  filled, 
provided  it  did  not  contain  any  cause  of  action  when  put  into  the 
hands  of  the  officer  to  be  served,  and  when  actually  served  ;  for  the 
question  must  always  be,  whether  then  when  it  was  served  it  was 
a  good  writ,  so  as  to  hold  the  property  attached.  The  allegation 
of  there  being  no  cause  of  action  when  it  was  put  into  the  officer's 
hands  for  service,  is  surplusage  and  may  be  rejected ;  so  that  there 
is  no  duplicity. 

J 

FISHER   V.   WREN. 
In  the  Common  Pleas.     1688. 
Keported  3  Modern,  250. 
Duplicity  should  be  attacked  by  demurrer. 

The  plaintiff  brought  an  action  of  trespass  on  the  case,  and  de- 
clared that  he  was  seised  of  an  ancient  messuage,  and  of  a  meadow, 
and  an  acre  of  land  parcel  of  the  demesnes  of  the  manor  of  Crosth- 
wait ;  and  sets  forth  a  custom  to  grant  the  same  by  copy  of  court 
roll  ;  and  that  there  are  several  freehold  tenements  parcel  of  said 
manor,  and  likewise  several  customary  tenements  parcel  also 
thereof,  grantable  at  the  will  of  the  lord ;  and  that  all  the  free- 
holders, etc.,  time  out  of  mind,  etc.,  together  with  the  copyholders 
according  to  the  custom  of  the  said  manor  have  enjoyed  8olam  et 
separalevi  pasturam  of  the  ground  called  Garths,  parcel  of  the  said 
manor,  for  their  cattle  levant  et  couchant,  etc.,  and  had  liberty  to 
cut  the  willows  growing  there  for  the  mending  of  their  houses  ;  and 
the  defendant  put  some  cattle  into  the  said  ground  called  Garths, 
which  did  eat  the  willows,  by  reason  whereof  the  plaintiff  could 
have  no  benefit  of  them,  etc.  Upon  not  guilty  pleaded,  there  was 
a  verdict  for  the  plaintiff. 


RULES    OF   PLEADING.  533 

Pemberton,  Serjeant,  now  moved  in  arrest  of  judgment ;  and 
took  these  ^  exceptions. 

First,  as  to  the  manner  of  the  prescription  which  the  plaintiff, 
had  laid  to  be  in  the  freeholders,  and  then  alleged  a  custom  for  the 
copyholders,  etc.,  and  so  made  a  joint  title  in  both,  which  cannot 
be  done  in  the  same  declaration,  because  a  prescription  is  always 
alledged  to  be  in  a  person,  and  a  custom  must  be  limited  to  a  place, 
and  therefore  an  entire  thing  cannot  be  claimed  both  by  a  pre-- 
scription  and  custom,  because  the  grant  to  the  freeholders  and  this 
usage  amongst  the  copyholders  could  not  begin  together. 

E.  contra  it  was  argued.  That  it  cannot  be  denied,  but  that  there 
may  be  a  custom  or  prescription  to  have  solam  et  separalem 
pasturam.  But  whether  both  prescription  and  custom  can  be 
joined  together,  is  the  doubt  now  before  the  court ;  and  as  to  that 
he  held  it  was  well  enough  pleaded,  for  where  there  is  an  unusual 
right,  there  must  be  the  like  remedy  to  recover  that  right ;  it  was 
thus  pleaded  in  North's  Case,  1  Saund.  347,  351 ;  1  Vent.  383. 

But  admitting  it  not  to  be  well  pleaded,  it  is  then  but  a  double 
plea,  to  which  the  plaintiff  ought  to  have  demurred ;  and  this  may 
serve  for  an  answer  to  the  first  exceptions. 

Adjournatur. 

/ 
READ   V.   MATTEUR. 

In  the  King's  Bench.     1735. 

Reported  Cases  Time  of  Hardwicke,  286. 

Trover  against  Christopher  Matteur  ;  defendant  pleads  in  abate- 
ment that  he  is  called  John  Mother,  and  by  the  same  name  and 
sirname  was  always  known  and  called,  absque  hoc  that  he  is  named 
by  that  name  and  sirname  of  Christopher  Matteur,  or  by  the  same 
name  or  sirname  was  never  known  or  called  ;  to  which  plea  plaintiff 
demurred. 

Serjeant  Hay  ward  for  the  plaintiff,  objects,  Ist,^  That  this  is  a- 
double  plea  because  here  are  two  matters  put  in  issue,  vi/. 
Whether  his  christian  name  be  John,  and  whether  his  sirname  be 
Mether. 

Kyf&n  for  defendant.  The  two  names  are  but  one  description,  and 
showing  the  whole  name  to  be  mistaken  is  but  one  fact  put  in  issue. 

Lord  Hardwicke :  I  think  the  plea  is  well  enough,  and  not 
double.     It  is  an  uncommon  thing  for  plaintiff  to  mistake  both 

1  The  other  exceptions  and  matter  relating  thereto,  since  not  here  relevant,  are 
omitted. 

2  Matter  relating  to  the  second  plea,  since  not  here  relevant,  is  omitted. 


534  CASES    ON   COMMON-LAW   PLEADING. 

names  of  defendant,  and  therefore  there  may  not  be  many  pre- 
cedents of  such  a  plea,  but  when  such  a  mistake  is  made,  I  do  not 
see  how  the  defendant  can  plead  otherwise :  and  as  the  defendant 
is  in  plea  in  abatement  to  give  the  plaintiff  a  better  writ,  how  could 
he  do  so  in  this  case  without  showing  what  his  real  name  is  ? 
Judgment  that  the  bill  be  abated. 

AKGUMENTATIVENESS. 

"  Every  plea  must  be  direct,  and  not  by  way  of  argument,  or 
rehearsall."     Coke  upon  Littleton,  303  a. 

EXECUTORS   OF   GRENELIFE   v.   W , 

In  the  King's  Bench.     1538. 
Reported  1   Dyer,  42  a. 
Argumentativeness  defined. 

The  executors  of  one  Grenelife  brought  debt  on  a  bond  made  in 
August,  and  indorsed  with  this  condition :  "  The  condition,  etc. 
That  whereas  the  within  bounden  W.  hath  sold  to  the  within 
named  I.  G.  a  certain  meadow  in  D.  the  aforesaid  W.  shall  warrant 
the  said  I.  G.  and  save  harmless  against  lord,  and  king,  and  all 
other,  if  that  the  said  I.  G.  shall  have  and  peaceably  enjoy  the 
said  meadow,  to  him  and  to  his  heirs,  to  hold  of  the  lord  of  W. 
Hall,  by  the  service  thereof,  after  the  custom  of  the  manor,  that 
then,  etc."  The  defendant  pleaded,  that  the  said  meadow  was  cus- 
tomary and  parcel  of  the  said  manor  of  W.  and  demised,  and 
demisable  by  copy,  etc.,  and  that  there  is  a  custom  within  the 
manor,  that  if  the  customary  tenants  fail  in  payment  of  their  rents 
and  services,  or  commit  waste,  then  the  lord  for  the  time  being 
may  enter  for  forfeiture :  and  he  said,  that  the  said  I.  Grenelife 
took  the  said  meadow  by  copy  to  him  and  his  heirs,  at  a  court 
"holden  in  October  next  after  the  making  of  the  bond ;  and  showed 
the  certainty,  and  who  was  steward  ;  and  he  further  said,  that  the 
said  I.  G.  during  all  his  life  time  had  and  peaceably  enjoyed  the 
meadow,  and  died  seised  thereof,  by  reason  whereof  the  said 
meadow  descended  to  one  B.  as*  son  and  heir,  which  son  de 
injuria  sua  propria  entered  without  the  admission  of  the  lord, 
against  the  custom  of  the  said  manor ;  and  because  three  shillings 
of  rent  were  in  arrear  on  such  a  day,  the  lord  entered  the  meadow, 
as  into  lands  forfeited  to  him  ;  whereof  he  prayed  judgment,  etc. 
And  to  this  the  plaintiff  demurred.  .  .  . 

And  Shelley  compared  the  case  to  a  Banbury  cheese,  which  is 


RULES   OF   PLEADING.  535 

worth  little  in  substance  when  the  parings  are  cut  off,  for  so  this 
case  is  brief  in  substance,  if  the  superfluous  trifling  which  is  on  the 
pleadings  be  taken  away ;  for  the  intention  of  the  condition  was, 
that  the  obligor  should  warrant  and  save  harmless  I.  G.  for  the 
land  sold,  and  that  is  the  effect  of  the  condition.  And  then  there 
is  nothing  more  to  be  seen  but  how  the  defendant  hath  performed 
such  intention,  when  he  pleads  that  I.  G.  had  and  peaceably  en- 
joyed it  all  his  life.  And  it  appeared  to  him  that  this  was  not 
well  pleaded,  for  it  is  only  argument,  s.  if  he  has  peaceably  enjoyed 
the  land  ;  therefore  he  hath  guaranteed  and  saved  him  harmless, 
but  he  thought  this  was  not  sufficiently  pleaded,  for  divers  cases 
are  ruled  in  the  books,  that  a  man  shall  not  plead  by  argument,  but 
directly  in  fact.  As  if  in  trespass  for  carrying  away  goods,  the 
defendant  would  plead  that  the  plaintiff  never  had  any  goods,  this 
is  argumentative,  that  then  the  defendant  is  not  guilty ;  and  never- 
theless it  is  no  plea,  and  yet  in  that  case  the  argument  is  infallible  ; 
therefore  a  multo  fortiori  in  this  case,  here,  where  he  pleads  per- 
formance of  the  condition  by  a  fallible  argument,  for  although  the 
obligee  hath  peaceably  enjoyed,  this  may  be,  and  yet  he  may  have 
cause  of  warranty,  and  also  so  to  be  saved  harmless ;  because  if  a 
man  bring  against  him  a  plaint  for  the  land,  and  he  have  cause  to 
vouch,  and  the  other  be  nonsuited  or  barred,  so  that  the  obligee 
continue  his  estate  peaceably,  yet  the  condition  is  broken,  and  the 
suing  of  an  action  is  not  tortious,  nor  contra  pacem,  and  whatever  is 
not  forcible  is  peaceably  done.  (And  he  examined,  and  dwelt  much 
upon  that  word  peaceably.)  And  also  it  might  be  that  I.  G.  forfeit 
issues  to  the  king,  whereof  he  is  not  saved  harmless  ;  and  therefore 
this  argument  which  is  fallible  is  not  well  pleaded,  wherefore,  etc. 
But  if  he  had  alleged  that  I.  G.  was  impleaded,  and  he  guaranteed 
and  defended  him,  where  he  paid  the  issues  for  him,  that  would 
have  been  good  :  or  if  he  had  said  directly,  that  no  man  had  brought 
an  action  against  him,  and  that  he  was  not  damnified  by  the  king, 
or  any  one  else,  etc.  that  would  have  been  well  pleaded  ;  but  as  it 
now  is  pleaded,  the  plaintiff  ought  to  recover.  But  Baldwin  was 
of  a  contrary  opinion  ;  though  neither  I,  nor  any  one  else,  I  believe, 
understood  his  refutation,^ 

EEPUGXANCY. 

"  Eepugnancy  ...  as  the  term  imports,  is  some  contrariety  or 
inconsistency  between  different  allegations  of  the  same  party." 
Gould  on  Pleading,  154. 

*  Matter  not  here  relevant  is  omitted. 


536  CASES    ON   COMMON-LAW   PLEADING. 

PALMER  V.    STAVELY. 

In  the  King's  Bench.     1701. 

Reported  1  Salkeld,  24. 

Indebitatus  assumpsit  for  money  had  and  received  by  the  de- 
fendant for  the  plaintiff  ad  usum  of  defendant,  and  verdict  upon 
non  assumpsit  for  the  plaintiff.  And,  upon  motion  in  arrest  of 
judgment,  the  court  held,  that  these  words  ad  usum  of  the  defend- 
ant, should  be  rejected,  because  they  are  insensible  and  repugnant, 
and  then  the  promise  was  for  money  had  and  received  by  the 
defendant  for  the  plaintiff,  which  is  well. 


HART  V.   LONGFIELD. 

In  the  Queen's  Bench.     1703. 
Reported  7  Modern,  148. 

Indebitatus  a's%umpsit.  There  were  several  counts  in  the  declara- 
tion ;  and  demurrers  to  some,  and  issues  taken  upon  others. 

One  of  the  counts,  to  which  there  was  a  demurrer,  was  this  : 
The  plaintiff  declared,  that  whereas  such  a  day  and  year  the 
defendant  was  indebted  to  him  in  such  a  sum  for  nourishing 
Edward  Longfield,  at  the  request  and  instance  of  the  defendant, 
and  that  he,  the  defendant,  promised  to  pay  him.  There  was  also 
a  quantum  meruit  for  nourishing  the  said  Edward  Longfield,  for  the 
same  time. 

The  second  exception  ^  was.  That  the  first  declaration  being  an 
indebitatus  for  nourishing  of  Edward  Longfield  for  such  a  time, 
there  is  likewise  a  quantum  meruit  for  the  same  nourishing,  and  it  is 
contradictory,  that  there  should  be  one  agreement  to  pay  so  much 
as  it  should  be  worth,  and  another  to  pay  a  sum  uncertain,  and 
both  stand. 

Holt,  Chief  Justice.  These  cannot  be  his  agreements,  and  both 
stand  for  the  same  thing  at  the  same  time  ;  for  in  such  case,  the 
last  will  destroy  the  first,  and  the  last  will  only  stand ;  but  the 
way  had  been,  to  aver  them  to  be  different  children ;  and  that  is 
the  right  way  when  a  quantum  meruit  and  indebitatus  is  brought 
for  the  same  thing ;  for  here  you  ought  to  multiply  Edward  Long- 
field  as  often  as  you  multiply  your  declaration.  .  .  .  And  the  court 
directed  the  plaintiff  to  enter  a  non  pros,  upon  all  but  the  first,  and 
take  judgment  upon  that,  and  so  it  was  done. 

1  Matter  relating  to  the  first  exception  is  here  omitted. 


BULES   OF   PLEADING.  537 

NEVIL   V.   SOPER. 

In  the  King's  Bench.     1698. 

Reported  1   Salkeld,  213. 

In  covenant  against  an  apprentice  the  plaintiff  assigned  for 
breach,  that  the  apprentice,  before  the  time  of  his  apprenticeship 
expired,  ^  durante  tempore  quo  survioit  departed  from  his 
master's  service.  The  defendant  demurred,  and  had  judgment, 
because  the  declaration  was  repugnant,  for  it  should  have  been 
durante  tempore  quo  servire  dehuit.  The  case  of  Lawly  v.  Arnold, 
Hill.  8  W.  III.  B.  R.  was  not  unlike  this :  That  was  trespass  for  taking 
and  carrying  away  his  timber  and  brick,  super  terrain  suamjacent. 
ergo  confectionem  domus  de  novo  cedificat.  And  the  court  held 
this  insensible,  for  they  could  not  be  materials  towards  the 
building  of  a  house  already  built.  Sed  qucere,  If  that  was  not 
surplusage  ? 

WYAT   V.    ALAND. 

In  the  Queen's  Bench.    1703. 

Reported  1  Salkeld,  324. 

Surplusage  when  material. 

An  action  qui  tarn  was  brought  by  an  informer  against  one  Aland 
for  taking  more  than  statute  interest;  and  he  declared,  that  the  de- 
fendant Aland  had  lent  to  one  Nicholson  £200  for  so  long,  and  that 
at  the  day  of  payment  it  was  corruptly  agreed  between  them  the  said 
Aland  and  Nicholson,  that  the  said  Nicholson  should  give  the 
said  Aland  £40  pro  deferendo  ^  dando  ulteriorem  diem  solutionis, 
viz.  tieljour  prcedicto  Aland;  whereas  Aland  was  not  the  person 
to  pay,  for  it  was  he  that  lent  the  money;  and- it  was  objected  that 
this  was  nonsensical  and  impossible,  and  that  the  statute  of 
jeofails  would  not  aid  a  penal  information.  The  counsel  of  the 
other  side  urged,  that  the  nonsense  should  be  rejected,  and  then 
the  declaration  would  be  sufficient ;  and  cited  1  Mod.  42 ;  2  Saund. 
96  ;  2  Croke,  349,  Hall  and  Bonithan.  Holt,C.  J.  Where  a  matter 
set  forth  is  grammatically  right,  but  absurd  in  the  sense  and  un- 
intelligible, we  cannot  reject  some  words  to  make  sense  of  the  rest, 
but  must  take  them  as  they  are ;  for  there  is  nothing  so  absurd  or 
nonsensical,  but  what  by  rejecting  and  omitting  may  be  made 
sense ;  but  when  a  matter  is  nonsense  by  being  contradictory  and 
repugnant  to  somewhat  precedent,  tliere  the  precedent  matter 
which  is  sense  shall  not  be  defeated  by  the  repugnancy  which 
follows,  but  that  which  is  contradictory  shall  be  rejected ;  as  in 


538  CA.SES   ON    COMMON-LAW   PLEADING. 

ejectment  where  the  declaration  is  of  a  demise  the  second  of 
January,  and  that  the  defendant  'postea,  soil  the  first  of  January 
ejected  him ;  Here  the  scilicet  may  be  rejected,  as  being  expressly 
contrary  to  the  postea  and  the  precedent  matter.^ 

Powell,  J.,  differed  as  to  the  first  point,  and  was  of  opinion,  that 
words  unnecessary  might  in  construction  be  omitted  or  rejected, 
though  they  are  not  repugnant  or  contradictory,  but  in  cceteris 
omnibus  agreed  with  the  chief  justice.     Adjournatur. 

1  "  2dly,  he  seemed  to  bold,  that  an  information  upon  a  penal  statute  by  a  common 
informer  "was  not  withiu  the  statute  of  jeofails,  otherwise  of  an  information  by  a  party 
grieven^  3dly,  he  held  that  tlie  word  dando  was  applicable  to  Nicholson,  and  soluti- 
onis to  Alland  ;  so  that  it  bore  this  meaning,  viz.  for  giving  a  farther  day  to  Nicholson 
of  payment  to  Alland,  since  he  was  to  receive,  and  the  money  was  to  be  paid  to  him ; 
and  where  a  matter  is  capable  of  different  meanings,  that  shall  be  taken  which  shall 
support  the  declaration  or  agreement,  and  not  the  other,  which  would  defeat  it."  iSed 
contra,  Co.  Litt.  303  b. 


CHAPTER  XI. 

MOTIONS   BASED    UPON   THE    PLEADINGS. 

MOTION   IN   ARREST   OE   JUDGMENT. 

"A  MOTION  in  arrest  of  judgment  is  to  be  considered  exactly 
the  same  as  if  the  question  had  arisen  on  general  demurrer."  Per 
Ellenborough,  C.  J.,  in  Bowdell  v.  Parsons,  10  East,  359  [1808]. 

BROOKE  V.   BROOKE  AND  OTHERS. 

In  the  King's  Bench.     1664. 
Reported  1  Siderfin,  184. 

Errors  in  substance  may  be  cured  by  subsequent  pleadings,  so  as  to  be  good 
on  motion  in  arrest. 

In  trespass  for  taking  a  hook,  etc.,  the  defendant  pleaded  that  he 
had  a  way  to  such  a  wood  across  the  land  of  the  plaintiff,  that 
he  was  passing  there,  and  that  the  plaintiff  endeavored  to  cut  his 
harness  and  to  wound  him  with  the  said  hook,  wherefore  he  took 
the  said  hook  out  of  the  hands  of  the  plaintiff,  and  delivered  it  to 
the  constable,  etc.  Issue  upon  the  way,  and  verdict  for  the 
plaintiff.  And  it  was  moved,  in  arrest  of  judgment,  that  the 
plaintiff  had  not  shown  in  his  declaration  that  the  hook  was  in  his 
possession.  And  it  was  agreed  by  the  court,  that  if  the  defendant 
had  pleaded  Not  guilty,  the  judgment  should  be  arrested,  because 
the  plaintiff  does  not  say  in  his  declaration  hamum  suum,  nor 
show  that  it  was  in  his  possession.  But  in  this  case  the  court 
were  of  opinion  that  the  defendant,  by  his  special  plea,  made  the 
declaration  good,  for  the  defendant  pleads  that  he  took  the  hook 
extra  possessionem  of  the  plaintiff,  wherefore  the  plaintiff  may  well 
maintain  this  action  on  his  possession  without  any  property.^ 

1  Drake  v.  Corderoy,  Cro.  Car.  288  ;  Osborne  v.  Brooke,  Aleyn,  7  ;  Slack  v.  Lvon, 
9  Pick.  62;  Vaughan  v.  Havens,  8  Johns.  110  (semble),  accord.;  Badcock  i'.  Atkins, 
Cro.  El.  416  ;  Pelton  v.  Ward,  3  Caiues,  R.  73,  contra.  See  Willion  v.  Berkeley,  Plowd. 
230;  Wright  v.  Goddard,  8  A.  &  E.  144;  Butt's  Case,  7  Co.  24. 


540  CASES    ON    COMMON-LAW   PLEADING. 


BARRET   V.   FLETCHER. 

In  the  King's  Bench.     1609. 

Reported  i>j  Croke's  James,  220. 

As  a  general  rule,  errors  in  form  are  no  ground  for  arresting  judgment. 

Debt,  upon  an  obligation  of  five  hundred  pounds,  conditioned  to 
stand  to  the  award  of  J.  S.  and  T.  D.,  so  that,  etc. 

The  defendant  pleaded,  that  the  arbitrators  did  not  make  any 
award. 

The  plaintiff  replies,  and  shows  the  award,  but  assigns  no  breach. 

The  defendant  rejoins,  that  the  award  pleaded  is  not  the  arbitra- 
tor's award  ;  whereupon,  issue  being  joined,  a  verdict  was  given  for 
the  plaintiff. 

It  was  moved  in  arrest  of  judgment,  because  the  plaintiff  in  his 
replication  not  having  assigned  any  breach  of  the  award,  there  was 
not  cause  of  action  ;  for  the  obligation  is  not  for  debt,  but  is  guided 
by  the  condition,  which  is  for  the  forbearance  of  a  collateral  thing, 
and  the  court  ought  to  be  satisfied  that  the  plaintiff  had  good  cause 
of  action,  otherwise  they  cannot  give  judgment;  for  although  a 
verdict  be  given  for  the  plaintiff,  yet  this  defect  in  the  replication 
is  matter  of  substance,  and  is  not  helped  by  the  statute. 

The  court  being  of  that  opinion,  judgment  was  stayed. 

SLACK  V.   LYON   AND   ANOTHER. 
Supreme  Judicial  Court,  Massachusetts.     1829. 
Reported  im  9  Pickering,  61. 
Errors  in  substance,  if  cured,  may  not  be  reached  by  motion  in  arrest.  ■ 

This  was  a  complaint  under  the  statute,  in  order  to  obtain 
damages  for  overflowing  the  complainant's  land.  His  complaint 
alleged,  that  the  defendants  "  have  maintained  and  kept  up  a  dam 
across  Charles  Kiver  for  six  years  last  past,  and  still  do  maintain 
and  keep  up  said  dam,  whereby  the  lands  "  of  the  petitioner,  since 
May  25,  1825,  "have  been  overflowed  and  greatly  damaged." 

The  respondents  pleaded,  that  a  jury  ought  not  to  be  impanelled 
to  appraise  the  yearly  damage,  because  they  are  seised  and  in  the 
possession  and  occupation  of  certain  mills  on  and  below  the  dam, 
and  by  reason  of  such  seisin,  possession,  and  occupation  by  them 
and  those  whose  estate  they  have,  they,  for  all  the  time  mentioned 
in  the  complaint,  had,  and  still  have  a  right,  by  means  of  the  dam, 
to  raise  the  water  as  high  as  it  has  been  raised  by  this  means 


MOTIONS    BASED    UPON   THE   PLEADINGS.  541 

during   the    time    mentioned   in    the   complaint,   without   paying 
damage.  ^ 

The  replication  denied  the  riglit  of  the  respondents  to  raise  the 
water  as  high  as  it  had  been  raised,  without  paying  damage.  Issue 
was  thereupon  joined,  and  a  verdict  found  for  the  complainant. 
The  respondents  tlien  moved  in  arrest  of  judgment,  because  the 
complaint  did  not  allege  that  the  dam  was  erected  and  kept  up, 
and  the  water  raised  for  the  purpose  of  working  or  turning  any 
water-mills,  or  that  there  were  any  mills  on,  below,  or  connected 
with  the  dam,  by  means  of  which  the  complainant's  laud  was 
overflowed. 

Kichardson  and  Gushing,  in  support  of  the  motion,  contended 
that  the  defect  in  the  complaint  was  one  of  substance,  and  that  it 
was  not  cured  by  the  verdict  or  by  the  respondents'  pleading  over. 
They  cited  St.  1795,  c.  74 ;  Kingsley  v.  Bill,  9  Mass.  E.  198 ; 
Stilson  V.  Tobey,  2  Mass.  E.  521  ;  Avery  v.  Tyringham,  3  Mass.  E. 
160  ;  Wells  v.  Prince,  4  Mass.  E.  64  ;  Fuller  v.  Holden,  4  Mass.  E. 
498 ;  Spear  v.  Bicknell,  5  Mass.  E.  132 ;  Cutler  v.  Southern, 
1  Lev.  194 ;  Badcock  v.  Atkins,  Cro.  Eliz.  416  ;  Pelton  v.  Ward, 
3  Gaines,  E.  73  ;  2  Ghitty,  PI.  424,  n.  1 ;  Bonham's  Gase,  8  Go.  120  ; 
Elwis  V.  Lombe,  6  Mod.  119;  Eigeway's  Gase,  3  Go.  52;  Butt's 
Case,  7  Co.  25. 

Metcalf,  for  the  complainant,  admitted  that  the  defect  in  the 
complaint  was  not  cured  by  the  verdict,  but  insisted  that  it  was 
cured  by  the  plea  in  bar.  The  old  rule  in  Co.  Lit.  3U3  b,  that  when 
a  count  is  defective  "  by  omission  of  some  circumstance,  as  time, 
place,  etc.,  there  it  may  be  made  good  by  the  plea  of  the  adverse 
party,  but  if  it  be  insufficient  in  matter,  it  cannot  be  salved,"  meant 
only  that  matters  of  form,  but  not  of  substance,  are  waived  by  mere 
pleading  over.  Anon.,  2  Salk.  519  ;  Dunning  v.  Owen,  14  Mass. 
E.  162.  But,  however  this  may  be,  the  weight  of  authority,  as 
well  as  the  better  reason,  is,  that  an  express  admission  in  a  plea,  of 
a  material  fact  omitted  in  the  count,  supplies  the  defect.  The 
cases  of  Drake  v.  Corderoy,  Cro.  Gar.  288,  and  Osborne  v.  Brooke, 
Aleyn,  7,  have  overruled  Badcock  v.  Atkins,  cited  on  the  other 
side.  The  approbation  by  Spencer,  J.  (in  3  Gaines),  of  the  latter 
case,  was  retracted  in  Vaughan  v.  Havens,  8  Jolins.  E.  84,  and 
the  authorit}-  of  Drake  v.  Corderoy  recognized.  Metcalf  also  cited 
Brooke  v.  Brooke,  1  Sid.  184 ;  Zerger  v.  Sailer,  6  Binn.  24  ;  Stephen, 
PI.,  165 ;  Gelston  v.  Hoyt,  13  Johns.  E.  578. 

Parker,  G.  J.,  delivered  the  opinion  of  the  court.  No  doubt  the 
complaint  is  insufficient,  as  it  does  not  bring  the  case  within  the 
statute  ;  but  the  defect  is  cured  by  the  plea.     The  plea  sets  forth 


542  CASES   ON   COMMON-LAW    PLEADING. 

the  purposes  for  wliicli  the  water  was  raised,  bringing  the  case 
within  the  statute.  The  merits  of  the  question  have  been  tried,  and 
the  respondent  ought  not  to  be  allowed  to  go  back  to  a  fault  which 
he  ought  to  have  discovered  at  the  beginning,  unless  the  law  clearly 
requires  it. 

The  authorities  are  contradictory ;  some  maintaining  that  a  count 
defective  in  substance  cannot  be  cured  by  pleading  over;  others  the 
contrary.  We  are  at  liberty  to  follow  those  which  seem  to  be 
founded  on  the  better  reason.  Two  of  the  old  cases  very  decidedly 
maintain  the  affirmative ;  that  in  Cro.  Car.  288,  where  a  count  for 
slander,  defective  in  substance,  was  cured  by  the  defendant's  plea, 
and  the  case  in  Siderfin.  In  this  last  case  the  plaintiff  counted 
against  the  defendant  in  trespass,  alleging  that  he  had  taken  his 
hook.  The  defendant  pleaded,  that  the  plaintiff  being  about  to 
strike  him  with  the  hook,  he  took  it  out  of  his  hands  in  order  to 
deliver  it  to  a  constable.  It  was  moved  in  arrest,  for  that  the 
plaintiff  had  not  averred  that  the  hook  was  in  his  possession.  The 
court  said,  had  the  defendant  pleaded  the  general  issue,  the  plaintiff 
could  not  have  had  judgment ;  but  having  shown  that  he  took  the 
hook  out  of  the  possession  of  the  plaintiff,  he  had  thereby  cured  the 
defect  in  the  count.  These  two  cases  do  not  appear  to  have  been 
overruled  in  England  ;  on  the  contrary,  they  are  cited  in  the  digests 
and  text-books  without  disapprobation,  down  to  the  recent  work  on 
pleading  by  Stephen. 

In  New  York,  however,  a  contrary  doctrine  was  held,  it  being 
laid  down  in  the  case  in  3  Caines,  that  a  count  defective  in  sub- 
stance can  in  no  case  be  cured  by  the  defendant's  plea ;  and  the 
case  of  Drake  v.  Corderoy  passed  in  review  before  the  court.  But 
in  a  later  case,  in  8  Johns.  Rep.,  the  case  of  Drake  v.  Corderoy 
is  distinctly  put  to  the  court,  and  Spencer,  J.,  who  delivered  the 
opinion,  expressly  admitted  its  authority. 

The  way  then  is  open  to  us  to  adopt  the  more  reasonable  doc- 
trine, which  we  think  is,  that  when  the  defendant  chooses  to 
understand  the  plaintiff's  count  to  contain  all  the  facts  essential  to 
his  liability,  and  in  his  plea  sets  out  and  answers  those  which  have 
been  omitted  in  the  count,  so  that  the  parties  go  to  trial  upon  a 
full  knowledge  of  the  charge,  and  the  record  contains  enough  to 
show  the  court  that  all  the  material  facts  were  in  issue,  the  de- 
fendant shall  not  tread  back  and  trip  up  the  heels  of  the  plaintiff 
on  a  defect  which  he  would  seem  tlius  purposely  to  have  omitted 
to  notice  in  the  outset  of  the  controversy. 

One  of  the  counsel  for  the  defendant  has  attempted  to  show  that 
the  defects  in  the  two  cases  above  cited,  which  were  allowed  to  be 


MOTIONS    BASED   UPON   THE   PLEADINGS.  543 

cured  by  the  plea,  were  in  form  ouly ;  but  in  the  case  of  the  hook, 
the  court  go  upon  the  ground  that  it  was  substance ;  and  the  case 
shows  that  it  was.  And  so  was  the  other  case,  of  Drake  v.  Corde- 
roy.  The  counsel  have  ingeniously  attempted  to  escape  from  those 
cases,  by  showing  that  the  defects  were  only  in  particularity  of  the 
averment ;  but  the  particulars  left  out  were  essential  to  the  aver- 
ment, so  that  it  was  substantially  defective. 

Motion  in  arrest  overruled. 


MOTION   FOR   A   EEPLEADER. 

WITTS   V.    POLEHAMPTON. 

In  the  King's  Bench.     1G98. 

Repokted  3  Salkeld,  305. 

Per  Holt,  C.  J.  Where  the  plea  of  the  defendant  confesses  the 
duty  for  which  the  plaintiff  declared,  but  doth  not  sufficiently  avoid 
it,  and  thereupon  issue  is  joined  on  an  immaterial  thing,  if  it  is 
found  for  the  plaintiff,  he  shall  have  judgment,  though  the  issue 
was  immaterial ;  but  where  the  defendant's  plea  avoids  the  plain- 
tifi's  duty,  who  replies  and  traverses  a  matter  not  material,  and 
issue  is  taken  upon  such  immaterial  traverse,  and  it  is  found  for 
him,  the  statute  of  jeofails  will  not  help  in  such  case ;  but  there 
must  be  a  repleader. 

STAPLE   V.   HEYDON.   ^ 
In  the  Queen's  Bench.     1703. 
Keported  6  Modern  Reports,  1. 
The  characteristics  of  repleaders  stated. 

The  plaintiff,  Staple,  brings  trespass  against  John  Heydon  and 
George  Fowler,  for  that  they,  on  the  thirty-first  day  of  May,  in  the 
thirteenth  year  of  the  late  King  William,  broke  his  close,  called 
"  the  wharf,"  in  Stepney,  in  Middlesex,  and  threw  down  a  perch  of 
rails  therein  standing;  and  also,  for  that,  on  the  seventh  day  of 
July  following,  they  entered  into  the  same  wharf,  and  committed 
the  like  trespass. 

The  defendant,  George  Fowler,  as  to  all,  pleads  not  guilty. 

But  John  Heydon,  as  to  the  trespass  laid  on  the  thirty-first  of 
May,  pleads  not  guilty  as  to  the  force,  and  justifies  the  entry,  and 
throwing  down  the  rails,  for  that  long  before  one  Edward  Gray  was 
possessed  by  virtue  of  a  certain  lease  for  eighty  years,  then  to  come, 
and  yet  unexpired,  of  the  said  wharf,  and  also  of  a  yard  next  ad- 


544  CASES   ON   COMMON-LAW   PLEADING. 

joining  thereunto ;  and  that,  for  the  necessary  use  of  the  said  yard, 
he  had  and  used  a  way  over  the  said  wharf  to  certain  stairs  on  the 
river  Thames,  which  was  thereunto  contiguous,  there  to  take 
water,  etc.  ;  and  that  being  so  possessed,  he,  on  such  a  day  and 
year,  which  was  prior  to  the  time  laid  in  the  trespass,  demised  the 
said  yard,  inter  alia,  to  the  defendant,  John  Heydon,  for  a  term  of 
years  yet  unexpired,  with  all  lawful  ways,  etc.,  thereunto  belong- 
ing ;  by  virtue  whereof  he  entered,  and  w^as  possessed,  etc.,  whereby 
he  was  entitled  to  the  said  way  ;  that  the  plaintiff  obstructed  it 
with  rails,  so  that  he,  coming  to  use  it,  could  not  pass ;  and  that 
he  requested  the  plaintiff  to  open  the  rails,  which  he  refused ;  so 
he  justified  the  throwing  them  down.  He  pleaded  directly  in  the 
same  manner  to  the  other  trespass  laid  on  the  seventh  of  July  ;  and 
avers  that,  at  the  several  times,  he  had  no  other  way  to  the  said 
stairs  and  river  Thames  than  by  and  through  the  said  wharf. 

The  plaintiff,  as  to  the  plea  to  the  first  trespass,  replies,  that  tlie 
defendant,  John  Heydon,  had  another  convenienter  way  to  the  river 
Thames  than  through  the  said  wharf,  and  thereupon  they  were  at 
issue ;  and  upon  the  plea  to  the  trespass  on  the  seventh  of  July  he 
demurs ;  "  therefore  let  a  jury  come  to  try  the  issues,  and  assess 
contingent  damages  upon  the  demurrer." 

Both  defendants  made  default  at  nisi  prius  ;  which,  being  re- 
corded, tiie  inquest  is  awarded  by  default,  and  G.  Fowler  is  found 
guilty  of  the  trespass  on  the  thirty-first  of  May,  but  acquitted  of 
that  on  the  seventh  of  July;  and  John  Heydon  is  acquitted  of  the 
trespass  on  the  thirty -first  of  May,  as  to  the  force,  but  the  jury 
found,  as  to  the  rest,  that  he  had  no  other  way  to  the  said  stairs 
and  river  Thames  than  through  the  said  wharf  ;  and  assess  damages 
upon  the  demurrer,  and  acquit  him  of  the  trespass  on  the  seventh 
of  July. 

In  this  case  several  points  were  moved  and  resolved  by  the  court. 

The  first  question  was,  whether  a  repleader  should  be  in  this  case, 
there  being,  as  was  said,  an  immaterial  issue  joined.  And  the 
court  held  clearly  the  issue  was  impertinent. 

But  as  to  repleaders  in  general,  the  court  held,  — 

First,  That  a  repleader  is  to  be  awarded  when  such  an  issue  is 
joined,  as  the  court  after  trial  thereof  cannot  give  a  judgment,  as 
being  impertinent  or  uncertain,  and  not  determining  the  right. 

Secondly,  That  before  the  statute  of  jeofails,  if  such  an  issue  were 
joined,  the  court  before  trial  might  award  a  repleader. 

Thirdly,  When  a  repleader  is  awarded,  the  amendment  must 
begin  where  the  plea,  which  makes  the  issue  bad,  begins  to  be 
faulty  ;  and  therefore  if  one  make  himself  a  bad  title  to  his  decla- 


MOTIONS    BASED    UPON   THE    PLEADINGS.  545 

ration,  to  which  there  is  a  bad  bar,  and  thereupon  a  bad  replication, 
on  which  there  is  issue,  there  the  repleader  must  be  awarded  and 
entered  on  record  ;  and  the  plaintiff  shall  declare  de  novo,  etc. 
But  if  the  bar  be  good,  or  the  plea  be  good,  and  the  replication  bad, 
and  issue  thereupon,  there  a  repleader  will  be  only  as  to  replica- 
tion ;  but  if  bar  and  replication  be  both  bad,  and  a  repleader  is 
awarded,  it  must  be  as  to  both. 

Fourthly,  If  the  court  award  a  repleader  where  it  ought  not  to 
have  been,  or  deny  it  when  it  ought  to  be,  it  is  error. 

Fifthly,  That  upon  the  award  of  a  repleader,  there  must  be  no 
costs,  because  it  is  a  judgment  of  the  court  upon  the  pleading ;  but 
upon  amendment  of  a  plea  in  paper,  there  must  be  costs. 

Sixthly,  That  upon  a  general  rule  for  repleader,  without  any 
direction  from  the  court  from  what  they  should  begin  the  repleader, 
it  must  begin  from  the  first  fault  which  occasioned  the  bad  plead- 
ing commenced  ;  for  the  judgment  is,  quod  partes  replacitent. 

Seventhly,  That  the  pleadings  in  this  case  were  such  as  a  re- 
pleader would  be  awarded  upon  at  the  common  law ;  for  the 
defendant  having  insisted  upon  a  title  to  a  way  by  grant,  his  aver- 
ment that  he  had  no  other  way  was  immaterial,  and  by  consequence 
the  issue  thereupon  impertinent;  besides,  there  was  no  issue  at  all 
joined,  for  the  plaintiff's  affirmative  does  not  meet  with  the  defend- 
ant's negative. 

Eighthly,  That  though  a  repleader  should  have  been  at  common 
law  in  this  case,  this  motion  having  been  made  before  trial,  and  it 
being  doubtful  whether  a  verdict  would  not  help  it  by  the  statute 
of  jeofails,  the  court  said  it  would  be  just  in  them  not  to  grant  a 
repleader  till  after  verdict ;  for  they  said  they  might  indeed  grant  a 
repleader  before  verdict  at  common  law,  but  they  were  not  bound 
to  do  it. 

So  note  the  diversity  since  the  statute  ;  for  though  it  were  reason- 
able to  award  a  repleader  before  verdict  at  common  law,  where  the 
pleading  appeared  such  on  which  no  judgment  could  be  after  ver- 
dict ;  yet  since  the  statute,  when  a  verdict  may  cure  immaterial  or 
informal  issues,  it  may  not  be  proper  to  do  it. 

Ninthly,  After  the  trial  the  court  held  that  this  issue  was  such 
on  which  no  judgment  could  be;  for  the  defendant  pleaded  that  he 
had.no  other  way  to  the  stairs  and  river  Thames  ;  the  plaintiff  re- 
plies that  he  had  another  way  to  the  Thames  ;  and  the  jury  found 
no  other  way  to  tlie  said  stairs  and  river  Tliames  ;  so  in  truth  there 
was  no  issue  joined. 

Tenthly,  That  in  this  case  there  could  be  no  repleader,  for  the 
parties  were  quite  out  of  court  by  the  default. 

35 


546  CASES    ON   COMMON-LAW   PLEADING. 


READ  V.   DAWSON/ 

In  the  Common  Pleas.     1676. 
Reported  2  Modern,  139. 

Debt  upon  bond  against  the  defendant  as  executor:  issue  was 
joined  whether  the  defendant  had  assets  or  not  on  the  thirtieth  day 
of  November,  which  was  the  day  on  whicli  he  had  the  first  notice 
of  the  plaintiffs  original  writ ;  and  it  was  found  for  the  defendant, 
that  then  he  had  not  assets. 

It  was  moved  for  a  repleader,  because  it  was  said  that  this  was  an 
immaterial  issue ;  for  though  he  had  not  assets  then,  yet  if  he  had 
any  afterwards  he  is  liable  to  the  plaintiffs  action. 

But  Barrell,  Serjeant,  moved  for  judgment  upon  this  verdict,  by 
reason  of  the  statute  of  32  Hen.  VIII.  c.  30,  which  helps  in  cases  of 
mispleading  or  insufficient  pleading.  It  is  true,  there  are  many 
cases  which  after  verdict  are  not  aided  by  this  statute,  as,  etc.^  ,  .  . 
If  the  plea  on  which  the  issue  is  joined,  hath  no  colorable  pretence 
in  it  to  bar  the  plaintiff,  or  if  it  be  against  an  express  rule  in  the 
law,  there  the  issue  is  immaterial,  and  so  as  if  there  were  no  issue ; 
and  therefore  it  is  not  aided  by  the  statute ;  but  if  it  hath  the 
countenance  of  a  legal  plea,  though  it  wants  necessary  matter  to 
make  it  sufficient,  there  sliall  be  no  repleader,  because  it  is  helped 
after  verdict.  Here  the  parties  only  doubt  whether  there  were  assets 
at  the  time  of  the  notice,  and  it  is  found  there  w^ere  none.  And  so 
judgment  was  to  be  given  accordingly. 

The  whole  court  was  of  that  opinion. 

But  Atkins,  Justice,  was  clear,  that  if  the  parties  join  in  an  im- 
material issue  there  shall  be  no  repleader,  because  it  is  helped  after 
verdict  by  these  words  in  the  statute,  viz.  "  any  issue ; "  it  is  not 
said  an  issue  joined  upon  a  material  point ;  and  the  intent  of  the 
statute  was  to  prevent  repleaders ;  and  that  if  any  other  construc- 
tion should  be  made  of  that  act,  he  was  of  opinion  that  the  judges 
sat  there  not  to  expound  but  to  make  a  law ;  for  by  such  an  inter- 
pretation much  of  the  benefit  intended  by  the  act  to  the  party  who 
had  a  verdict,  would  be  restrained. 

The  other  justices  were  all  of  opinion,  that  since  the  making  of  this 
statute  it  had  been  always  allowed,  and  taken  as  a  difference,  that 
when  the  issue  was  perfectly  material  there  should  be  no  repleader; 
but  that  it  was  otherwise  where  the  issue  was  not  material. 

And  Scroggs,  Justice,  asked  merrily,  if  debt  be  brought  upon  a 

1  A  part  of  the  argument  is  omitted. 


MOTIONS   BASED   UPON    THE   PLEADINGS.  547 

bond,  and  the  defendant  plead  that  Robin  Hood  dwelt  in  a  wood, 
and  the  plaintiff  join  issue  that  he  did  not,  this  is  an  immaterial 
issue,  and  shall  there  not  be  a  repleader  in  such  case  after  verdict  ? 
Ad  quod  non  fuit  responsum. 

NON   OBSTANTE  VEREDICTO. 

"  "Where  a  plea  confesses  the  action,  and  does  not  sufficiently  avoid 
it,  judgment  shall  be  given  on  the  confession,  without  regard  to  a 
verdict  for  the  defendant,  which  is  called  a  judgment  7ion  obstante 
veredicto  ;  and  in  such  case,  a  writ  of  inquiry  shall  issue."  Tidd's 
Practice,  828. 

"The  distinction  between  a  repleader  and  a  judgment  non  obstante 
veredicto  seems  to  be  this:  that  when  the  plea  is  good  in  form,  though 
not  in  fact,  or  in  other  words,  if  it  contain  a  defective  title,  or  ground 
of  defence,  by  which  it  is  apparent  to  the  court,  upon  the  defend- 
ant's own  showing,  that  in  any  way  of  putting  it,  he  can  have  no 
merits,  and  the  issue  joined  thereon  be  found  for  him,  there,  as  the 
awarding  of  a  repleader  could  not  mend  the  case,  the  court,  for  the 
sake  of  the  plaintiff,  will  at  once  give  judgment  non  obstante  vere- 
dicto ;  but  where  the  defect  is  not  so  much  in  the  title,  as  in  the 
manner  of  stating  it,  and  the  issue  joined  thereon  is  immaterial,  so 
that  the  court  know  not  for  whom  to  give  judgment,  whether  for 
the  plaintiff  or  defendant,  there,  for  their  own  sake,  they  will  award 
a  repleader.  A  judgment,  therefore,  non  obstante  veredicto,  is  always 
•upon  the  merits ;  a  repleader,  upon  the  form  and  manner  of  plead- 
ing."    Tidd's  Practice,  830. 

LACY  V.   REYNOLDS. 

In  the  QuEEy's  Bench.     1591. 
Reported  in  Croke's  Elizabeth,  214. 

Action  for  words,  w^hich  were,  "  He  is  as  very  a  thief  as  any  is  in 
Warwick  goal ; "  and  avers  that  J.  S.  was  then  a  prisoner  ia  War- 
wick jail,  condemned  for  horse-stealing ;  and  it  was  clearly  held 
that  for  these  words  action  did  lie,  with  this  averment,  but  not 
otherwise. 

After  verdict,  this  matter  was  alleged  in  arrest  of  judgment, 
that  the  defendant  did  plead  the  bar,  quod  quidam  ignotus  came  to 
Warwick,  and  there  cut  the  purse  of  J.  N.,  and  the  plaintiff,  sci'ens 
this,  him  did  receive  and  comfort,  and  by  reason  of  it  spoke  tlie 
words.     The  plaintiff  replied  de  injuria  sua  pro^ma ;  and  upon 


548  CASES    ON   COMMOX-LAW   PLEADIXG. 

this,  issue  was  joined,  and  found  for  the  plaintiff.  It  was  alleged 
that  the  issue  is  ill  joined,  for  this  matter  doth  not  prove  the  plain- 
tiff a  thief,  although  it  doth  prove  him  a  felon.  The  court  held  that 
the  issue  was  not  well  joined;  but  they  conceived  that,  inasmuch 
as  he  had  by  this  confessed  the  words,  although  the  issue  is  mis- 
joined,  and  a  mis-trial,  yet  this  is  as  void,  and  the  court  shall  give 
judgment  upon  his  confession  ;  and  the  plaintiff  shall  not  have  his 
damages  taxed  by  the  court,  but  shall  have  a  new  writ  to  inquire  of 
damages.     And  it  was  so  adjudged.      Vide  22  Edw.  IV.  pi.  46. 


LAMBERT    v.    TAYLOR    AXD    ANOTHER,    EXECUTORS    OF 
GEORGE   RENTON,    DECEASED. 

In  thk  King's  Bench.     1825. 

Reporteb  in  4  Barxewall  &  Cresswell,  138. 

Motion  non  obstante  veredicto  proper  where  defendant  confesses  and  fails  to 
avoid. 

Declaration  ^  stated  George  Eenton,  on  the  12th  day  of  May, 
1813,  at,  etc.,  made  his  promissory  note  in  writing  for  £200,  and 
delivered  the  same  to  J.  Y.,  whereby,  etc.  It  then  averred  the  death 
of  G.  E.  without  payment  of  the  note;  that  on  the  11th  of  Novem- 
ber, 1818,  it  was  found  that  J.  Y.  was  afelo  de  se,  whereby  the  said 
note  was  forfeited  to  the  late  king;  that  on  the  23d  day  of  Novem- 
ber, 1821,  his  present  Majesty  gave  by  his  warrant  the  said  note  to 
J.  Lambert,  the  plaintiff,  etc.  Breach,  non-payment  by  Eenton  in 
his  lifetime,  or  by  the  defendants,  his  executors.  Plea,  first,  non- 
assumpsit  by  G.  Eenton,  and  issue  thereon.  Secondly,  that  tlie 
supposed  promissory  note  in  the  declaration  mentioned  became  due 
and  payable  to  J.  Younghusband  in  his  lifetime,  and  that  the  sup- 
posed causes  of  action  in  the  declaration  mentioned  did  not  accrue 
to  the  said  J.  Younghusband  at  any  time  within  six  years  next 
before  the  exhibiting  of  the  plaintiffs  bill ;  upon  which  plea  issue 
was  taken  in  the  replication.  Thirdly,  that  there  was  not  any  such 
record  of  the  said  supposed  inquisition  before  the  aforesaid  coroner 
as  the  said  plaintiff  had  in  his  declaration  alleged.  To  which  plea 
the  plaintiff  replied,  that  there  was  such  a  record ;  and  issue  was 
joined  upon  the  record,  which  record  was  produced  to  the  court, 
and  that  issue  found  for  the  plaintiff.  Lastly,  the  defendants 
pleaded  that  his  Majesty  did  not  make  any  such  gift  or  grant  unto 
the  plaintiff  as  the  plaintiff  had  in  his  declaration  alleged ;   and 

1  The  statement  of  the  declaration  is  abbreviated  as  in  Ames'  Cases  on  Pleading, 
and  only  so  much  of  the  case  is  given  as  relates  to  the  propriety  of  the  motion  for 
judgment  Jion  obstante  veredicto. 


MOTIONS   BASED   UPON   THE   PLEADINGS.  549 

upon  that  plea  issue  was  joined.  At  the  trial,  before  Bayley,  J., 
at  the  Northumberland  Summer  Assizes,  1823,  the  jury  found  a 
verdict  for  the  plaintiff'  on  the  first  and  last  issues,  with  £250  dam- 
at^es.  Upon  the  second  issue,  namely,  the  Statute  of  Limitations, 
the  jury  found  a  verdict  for  the  defendants. 

A  motion  was  made  in  this  court  on  the  part  of  the  plaintiff  to 
enter  up  judgment  for  him  no7i  olstante  veredicto  on  the  second  issue. 

Tindal,  for  the  plaintiff. 

Cross,  Serjt.,  contra. 

Tindal,  in  reply. 

Abbott,  C.  J.,  now  delivered  the  judgment  of  the  court,  and  after 
stating  the  facts  of  the  case,  proceeded  as  follows :  In  the  present 
case  the  plea  does  not  show  that  Younghusband  was  barred  by  the 
statute  at  the  time  of  his  death ;  and  if  he  was  not  so  barred,  then 
a  rio-ht  vested  in  the  crown  and  the  rights  of  the  crown  are  not 
barred  or  affected  by  the  statute.  The  crown  is  not  within  the 
operation  of  the  statute. 

The  plea  then  being  bad,  the  defendant  certainly  cannot  have 
judgment,  although  the  issue  is  found  for  him,  the  issue  being 
taken  on  an  immaterial  matter.  And  the  question  whether  the 
plaintiff  can  have  judgment,  or  whether  there  ought  to  be  a  re- 
pleader, depends  upon  the  question  whether  the  plea  does  or  does 
not  contain  a  confession  of  a  cause  of  action;  if  a  cause  of  action  be 
confessed  by  the  plea,  and  the  matter  pleaded  in  avoidance  be  in- 
sufficient, the  plaintiff  is  entitled  to  judgment,  notwithstanding  the 
verdict.  If  the  plea  does  not  confess  a  cause  of  action,  there  must 
be  a  repleader ;  Pitts  v.  Polehampton.  Now,  admitting  that  a  plea 
of  actio  non  accrevit  infra  sex  annos  as  generally  pleaded  does  not 
admit  that  any  cause  of  action  did  at  any  time  accrue,  yet  this  plea 
does  not  contain  that  matter  alone,  but  it  contains  an  assertion  that 
the  note  became  due  and  payable  to  Younghusband  in  his  lifetime. 
This  is  an  acknowledgment  that  Younghusband  had  at  one  time  a 
good  cause  of  action ;  and  if  he  had  a  cause  of  action,  the  right  to 
sue  would  upon  the  facts  alleged  in  this  declaration  pass  to  the 
crown,  and  from  the  crown  to  the  plaintiff,  unless  the  defendant 
has  alleged  some  matter  of  fact  sufficient  in  law  to  show  that  siich 
right  did  not  so  pass,  or,  in  other  words,  unless  the  matter  of  fact 
pleaded  in  bar  be  a  good  bar  in  law  to  the  action.  I  have  already 
said  that  we  think  it  is  not  a  good  bar ;  and  then  a  cause  of  action 
beincT  confessed  and  not  well  avoided,  the  plaintiff  is  entitled  to 
judgment. 

The  rule,  therefore,  will  be  that  judgment  be  entered  for  the  plain- 
tiff, non  olstante  veredicto.  Judgment  for  plaintiff. 


550  CASES   ON   COMMON-LAW   PLEADING. 

COULING  V.   COXE.' 
In  the  Common  Pleas.     1848. 
Reported  6  Dowling  &  Lowndes,  399. 
Non  obstante  veredicto  distinguished  from  repleader. 

Case  against  a  witness  for  disobedience  to  a  subpoena.  The  dec- 
laration, after  alleging  that  the  plaintiff  had  sued  one  Thomas 
Foulkes  in  an  action  of  trespass,  and  that  certain  issues,  before 
then  joined  in  that  suit,  came  on  to  be  tried  at  Kingston,  stated  the 
issuing  and  service  on  the  defendant  of  a  writ  of  subpoena  on 
behalf  of  the  plaintiff.  The  declaration  then  averred  that  the 
plaintiff  had  a  good  cause  of  action  in  the  said  suit,  and  that  the 
appearance  and  testimony  of  the  now  defendant,  in  obedience  to 
the  writ  of  subpoena,  were  necessary  and  material  to  the  trial  of  the 
said  issues.  Breach,  that  the  now  defendant,  without  lawful  ex- 
cuse, neglected  to  appear  and  give  evidence,  by  reason  whereof  the 
plaintiff  was  obliged  to  withdraw  the  record,  and  was  compelled 
to  pay  certain  costs  to  the  said  Foulkes,  and  lost  the  benefit  of 
certain  costs  which  he,  the  plaintiff,  had  incurred  in  proceeding  to 
the  trial  of  the  said  issues. 

Pleas  :  first,  not  guilty  ;  secondly,  thirdly,  fourthly,  fifthly,  sixthly, 
and  seventhly,  traverses  of  material  allegations  in  the  declaration  ; 
eighthly,  that  the  plaintiff  had  not  a  good  cause  of  action,  modo  et 
forma;  ninthly,  that  the  testimony  of  the  defendant  was  not  ma- 
terial to  the  trial  of  the  issues;  and  tenthly,  leave  and  license. 
Issues  thereon. 

Upon  the  trial  before  Parke,  B.,  at  the  Guildford  Summer  Assizes, 
184fi,  the  jury  found  for  the  plaintiff  upon  all  the  issues  except  the 
eighth ;  and  upon  that  issue  they  found  for  the  defendant. 

Lush  having,  in  the  following  term,  obtained  a  rule  wm  on  the 
part  of  the  plaintiff  to  set  aside  the  verdict  upon  the  eighth  plea, 
and  for  a  repleader,  or  to  enter  up  judgment  for  the  plaintiff  non 
obstante  veredicto} 

Pearson  showed  cause. 

The  plaintiff  is  not  entitled  to  judgment  non  obstante  veredicto, 
fur  the  eighth  plea  is  not  in  confession  and  avoidance ;  Atkinson 
V.  Davies ;  Gwynne  v.  Burnell.  The  court  will  only  grant  a  re- 
pleader.    [He  referred  to  Gordon  v.  Ellis.] 

Lush,  contra. 

1  Only  so  much  of  the  case  is  given  as  relates  to  the  propriety  of  the  motion  for 
judgment  non  obstante  veredicto.  The  abstract  is  that  of  J.  B.  Ames  iu  his  Cases  on 
Pleading. 


MOTIONS   BASED   UPON   THE   PLEADINGS.  551 

If  the  rule  laid  down  in  Gwynne  v.  Burnell  be  of  universal  ap- 
plication, it  is  admitted  that  the  plaintiff  is  not  entitled  to  judgment 
non  obstante  veredicto,  but  that  a  repleader  will  be  awarded ;  because 
the  plea  upon  which  the  issue  has  been  found  against  the  plaintiff 
is  a  traverse,  and  not  in  confession  and  avoidance.  The  allegation, 
however,  which  that  plea  traversed,  was,  it  is  submitted,  immaterial, 
and  its  omission  would  not  only  not  have  made  the  declaration  bad, 
but  it  would  not  even  have  effected  the  amount  of  damages  to  be 
recovered  ;  for  it  was  immaterial,  as  regards  the  question  of  damages, 
whether  the  defendant's  evidence  was  necessary  upon  one,  or  upon 
all,  the  issues,  his  absence  being  the  cause  why  all  of  them  remained 
untried.  If  the  ninth  plea  had  traversed  that  the  defendant's  evi- 
dence was  material  upon  all  the  issues,  it  would  have  been  bad.  If, 
therefore,  the  allegation  traversed  by  tlie  eighth  plea  was  imma- 
terial, and  might  have  been  struck  out  altogether,  it  is  submitted 
that  a  repleader  would  be  useless,  and  that  the  court  will  give 
judgment  for  the  plaintiff  non  obstante  veredicto  ;  because,  besides 
this  immaterial  issue,  which  was  found  for  the  defendant,  there  are 
others  which  are  material  and  decisive  of  the  whole  cause  of  action 
which  have  been  found  for  the  plaintiff;  Negelen  v.  Mitchell. 
[Cresswell,  J.,  referred  to  2  Wms.  Saund.  319  e,  n.  (A),  6th  edit.] 

Wilde,  C.  J.,  now  delivered  the  judgment  of  the  court. 

The  second  question  is,  what  judgment  should  be  given  on  this 
record,  taking  the  eighth  plea  to  be  bad  ?  Before  the  statute  of 
Anne,  the  question  whether  there  should  be  a  repleader  or  judg- 
ment non  obstante  veredicto  depended  on  whether  the  plea,  on  which 
the  immaterial  issue  arises,  admits  a  cause  of  action  by  way  of  con- 
fession and  avoidance.  But  since  that  statute,  it  has  been  held 
that,  although  the  plea,  on  which  the  immaterial  issue  was  found 
for  the  defendant,  did  not  confess  the  cause  of  action,  if  it  was  con- 
fessed or  proved  on  the  other  pleas  which  were  found  for  the  de- 
fendant, there  should  be  no  repleader,  but  judgment  for  the  plaintitl". 
And  even  although  the  pleas  on  which  the  good  issues  have  been 
taken  and  found  for  the  plaintiff,  were  not  pleas  in  confession  and 
avoidance,  but  traverses  of  material  allegations  in  the  declaration, 
and  although  some  of  the  material  allegations  were  neither  traversed 
nor  proved,  nor  admitted  by  way  of  confession  and  avoidance, it  has 
been  held  that  where  the  other  material  pleas  enabled  the  court  to 
give  judgment,  without  requiring  the  parties  to  replead,  in  order  to 
show  on  which  side  the  right  was,  there  should  be  no  repleader, 
but  judgment  non  obstante  veredicto.  Indeed,  a  plea  traversing  an 
allegation  in  a  declaration,  although  not  for  all  purposes,  nor  in  all 
events,  an  admission  of  the  material  allegations  in  the  declaration 


552  CASES   ON    COMMON-LAW   PLEADING. 

which  it  does  not  traverse,  yet  may  be  considered  as  a  conditional 
admission,  that  is,  as  admitting  the  allegation  not  traversed,  in  case 
the  plaintiff  can  prove  the  allegation  traversed ;  and  it  is  certainly 
so  treated  in  the  case  in  which,  on  a  single  plea  traversing  a  part 
of  the  declaration,  where  an  issue  is  found  for  the  plaintiff,  the 
plaintiff  has  judgment ;  which  he  could  not  be  entitled  to,  unless 
the  court  considered  the  material  allegations  which  were  not  trav- 
ersed, as  being  admitted ;  and  the  same  consequence  follows  if 
several  material  traverses  are  all  found  for  the  plaintiff.  In  the 
present  case,  several  traverses  on  material  allegations  of  the  declara- 
tion are  found  for  tlie  plaintiff",  who  has  also  obtained  a  verdict  on 
the  plea  of  leave  and  license,  which  is 'a  plea  in  confession  and 
avoidance ;  and  the  only  issue  found  for  the  defendant  does  not 
show  that  the  plaintiff  has  no  cause  of  action.  So  that  the  court, 
therefore,  have  no  difficulty  in  saying  that  the  plaintiff,  and  not 
the  defendant,  is  entitled  to  judgment,  and  have  no  reason  to  award 
a  repleader  to  discover  which  is  riglit.  The  rule,  therefore,  to  enter 
judgment  for  the  plaintiff  on  the  eighth  plea,  7ion  obstante  veredicto, 
must  be  made  absolute. 

Rule  absolute. 


INDEX. 

[The  references  are  to  the  pages.] 


A. 

ABATEMENT, 

pleas  in,  374-407. 
office  of,  374. 

must  give  a  better  writ,  376,  379,  403. 
form  of,  407. 
causes  of,  374. 

misnomer,  378-382. 

variance,  378. 

nonjoinder  or  misjoinder  of  parties,  402  n. 

the  plaintiff  fictitious,  or  an  outlaw,  or  excommunicated,  376,  377. 

pendency  of  a  prior  suit,  382-403. 

faults  in  the  writ,  151,  374. 

the  action  misconceived  (not  the  better  remedy),  383-385.. 

manner  of  pleading,  407. 

the  conclusion  of,  404,  405,  406. 

judgment  on,  403-407. 

when  interlocutory,  403-404. 
when  final,  404-407. 
order  of,  374. 
no  demurrer  in,  376. 
ABSQUE   HOC,  meaning  and  use  of,  518-521. 
ACTIO   FUR  ri,  97-100,  1 1 9  n. 
ACTIO   PERSONALIS   MORITUR    CUM  PERSONA,  224  n,  225  «. 

ACTION, 

of  assumpsit  (see  Assumpsit). 

of  account  (omitted,  because  obsolete),  152,  184. 

of  covenant  (see  Covenant). 

of  debt  (see  Debt). 

of  detinue  {see  Detinue). 

of  ejectment  (omitted,  because  properly  a  mixed  action). 

of  replevin  (see  Replevin). 

of  trespass  (see  Trespass). 

of  trespass  on  the  case  (see  Case) 

of  trover  (see  Trovek). 


554      ,  INDEX. 

ACTIO'S  —  continued. 
defined,  2. 

real,  mixed,  and  personal  distinguished,  2. 
civil  and  criminal,  distinguished,  2. 
proceedings  in  an,  3. 
ADMINISTRATOR,  effect  upon,  of  judgment  against  decedent,  152. 
APPEAL, 

of  peace  and  wounds,  form  of,  91. 
of  mayhem,  form  of,  92. 
of  larceny,  form  of,  100. 
of  robbery,  form  of,  100,  101. 
of  larceny,  characteristics  of,  103. 
of  robbery,  procedure  upon,  105,  106,  108,  109. 
bailee  may  maintain,  109. 
necessity  for, 

1.  fresh  pursuit,  105. 

2.  capture  by  the  appellor  or  one  of  his  band,  105. 

3.  thief  to  be  a  "  hand  having  "  thief,  i.  e.,  possessed  of  the  stolen 

goods,  106. 

4.  thief  to  be  convicted  on  his  pursuer's  appeal,  106. 
no,  of  depasturing  meadows,  117. 

ARGUMENTATIVE    PLEADING,  ill,  534,  535. 
ARGUMENTATIVENESS,  534-535. 
defined,  534,  535. 
instances  of,  535. 
ARREST, 

of  judgment  after  verdict,  for  faults  in  the  pleadings,  538-542. 

motion  in,  a  postponed  general  demurrer  in  effect,  354-356,  538. 
will  not  attack  cured  errors  in  substance,  538,  539. 
nor  in  form,  539. 
ARREST   OF  JUDGMENT, 
motion  in,  538-512. 
a  postponed  general  demurrer,  538. 
will  not  attack  errors  in  form,  539. 
but  will  attack  errors  in  substance,  539. 

unless  such  errors  have  been  cured,  538,  539-542. 
ARTIFICERS,  210. 
ASSAULT.     (See  Trespass  on  the  Case.) 

defined,  94. 
ASSUMPSIT,  204-244. 
defined,  204. 

compared  with  debt,  204-207. 

consideration  required  to  support  an  action  of,  14-20,  205-207. 
history  of  special,  208-231. 

trespass  on  the  case  and  assumpsit,  208-210. 
deceit  and  assumpsit,  211-223. 

the  passing  of  assumpsit  from  tort  to  contract,  223-231. 
allegation  of  an,  208,  209. 
history  of  indebitatus,  231-236. 
characteristics  of,  236-240. 
right  to  waive  a  tort  and  declare  in,  240-244. 


INDEX.  555 


ASSUMPSIT  —  continued. 

declaration  in  {see  Dkclarations). 

general  issue  in  {see  General  Issue). 

special  pleas  in  (see  Confession  and  Avoidance). 

ATTACHMENT,  9. 

by  pledges,  9. 

by  better  pledges,  9. 

writ  of,  in  Massachusetts,  152,  263. 
AVOIDANCE.     {See  Confession  and  Avoidance.) 
AVOWRY.     (See  Replevin.) 


B. 


BAILMENT,  209,  210. 
BANKRUPTCY,  186,  187. 

BAR, 

pleas  in,  defined,  408. 

the  general  issue,  408-473. 

pleas  in  confession  and  avoidance,  473-496. 

replication  de  ivjuria,  496-518. 

special  traverse,  518-525. 

by  way  of  estoppel  {see  Estoppel). 

BATTERY,  defined,  93. 
BATTLE.  {See  Trial.) 
BILL   OF   MIDDLESEX,  4-6. 

characteristics  of,  5,  6. 

form  of,  4,  5. 

influence  of,  upon  the  jurisdiction  of  the  court  of  King's  Bench,  2,  4-6. 


c. 

CASE,  143-179. 

writ  of  trespass  on  the,  149  n. 
history  of,  143-153. 

inefficiency  of  existing  remedies  in  1285  A.  d.,  144,  145. 
early  instances  of  issuing  new  writs  prior  to  1258  a.  d.,  146-148. 
in  the  age  of  Glanvill,  146. 

of  John,  146. 
early  instances  of  actions  savoring  of  deceit,  147. 
first  reported  case  on  a  writ  of  deceit.  147,  148. 
last  reported  case  on  a  writ  of  deceit  (Pasley  v.  Freeman,  3 
T.  R.  51),  147. 
Provisions  of  Oxford,  145,  148,  149. 
Statute  of  Westminster  II.,  149. 

part  of  common  law  of  Massachusetts,  149. 
scope  and  characteristics  of,  153-179. 
defined,  153.  • 

for  negligence,  155. 
for  injury  to  reversion,  156. 


556  INDEX. 

CASE  —  continued. 

the  distinctive  features  of,  157-1G3. 
how  differing  from  equity,  163-170. 
case  resembles  equity,  164-167. 
for  it  gives  a  remedy  for  every  legal  right,  163. 
new  facts  necessary  in  every  action  on  the,  167. 
how  far  case  gives  a  plain  and  adequate  remedy,  168-170. 
how  differing  from  ti-espass,  170-179. 

when  concurrent  with  ti'espass,  177-179. 
CHARTER.     (See  Trials.) 
CHOSE   ADIRREE,  180,  181. 
CODES,  258-262. 

procedure  under,  258,  261,  262. 
the  summons,  261,  262. 
the  form  of  the  summons,  262. 
the  service  of  the  summons,  262. 
CONFESSION  AND   AVOIDANCE,  473-496. 
in  justification  or  excuse,  defined,  473. 
in  discharge,  defined,  473. 
piea  in,  must  give  color,  432,  474. 
color  defined,  474. 

kinds  of  color  distinguished,  474-476. 
express  color  defined,  475. 
implied  color  defined,  475. 
color  illustrated,  476. 
possession  a  good  color  in  trespass,  476. 
confession  must  be  unqualified,  477. 

matter  which  should  be  pleaded  specially  or  should  not,  480-496. 
matter  which  qualifies  the  contract  declared  on  amounts  to  the  general 
issue,  480. 

for  it  is  a  denial  of  the  contract  declared  on,  481. 
hence,  matter  which  gives  a  different  interpretation  of  the  contract  should 

not  be  pleaded  specially,  486. 
incompatibility  between  the  contracts  declared  on  and  pleaded  the  test, 

488. 
matter  amounting  to  the  general  issue  should  not  be  specially  pleaded, 
410,  432,  438,  439,  476,  4S1,  485,  493. 

tho'  matter  of  law  may  always  be  specially  j^leaded,  412. 
but  pleas  amounting  to  the  general  issue  and  pleas  disclosing  matter  ad- 
missible thereunder  must  be  distinguished,  490-496. 
CONUZANCE.     (See  Replevin.) 
COURTS,  1,  2. 

common  pleas,  1. 
Exchequer,  1. 
King's  Bench,  1. 
jurisdiction  of,  1,  2. 
COVENANT,  123-143. 


defined,  123,  136-142. 
form  of  writ,  125. 
history  of,  123-135. 


(See  Deed.) 


INDEX.  557 

COVENANT  —  continued. 

anciently  a  mixed  action,  123. 
to  recover  seisin,  125. 
and  limited  to  immohUia,  125. 
later  extended  by  the  Statute  of  Wales  to  mobilia,  125. 

thenceforth  a  personal  action,  125. 
very  anciently  an  unsealed  writing  was  admissible  in  evidence,  12G. 
later  unsealed  acquittances  held  worthless,  126,  127. 

later  certain  instruments  like  policies  of  assurance  held  admissible  be- 
cause of  their  standing  in  the  law  merchant,  123. 
later  the  exception  to  the  rule  became  the  rule,  123. 
and  it  was  held  that  an  unsealed  writing  was  good  without  consideration, 

128-131. 
but  this  doctrine  was  overturned,  132-133. 
and  even  a  bond  based  upon  an  illegal  consideration  was  held  good,  133- 

131. 
a  sum  certain  due  by  virtue  of  a  specialty,  anciently  not  recoverable  by 
writ  of  covenant,  13i,  135. 
later,  thus  recoverable,  135. 
'^definition  and  characteristics,  135,  143. 
sealed  recognition  of  an  unsealed  contract  does  not  make  the  contract  a 

covenant,  136. 
bare  signing  and  sealing  makes  a  covenant,  137. 
how  sealing  set  forth  in  declaration,  138. 
implied  covenants,  139. 
covenants  later  altered  by  parol,  140-141. 
action  of,  limited  to  specialties,  142. 
only  actual  parties  to  the  covenant  may  sue  thereon,  143. 
CURSITOR,  7,  8. 

D. 

DEBT,  11-47. 

forms  of  writ  of,  12,  13. 
history  of,  11-20. 

evolved  from  a  writ  of  right,  for  services  due  by  contract  of  tenure, 

12,  13. 
scope  of,  in  time  of  Edward  I.,  13,  14. 
evolution  of,  14-16. 

consideration  necessary  to  support,  16-20. 
characteristics  of,  20-47. 

anciently  lay  to  recover  a  specific  chattel,  24. 
but  does  not  now,  20-24. 
tho'  it  lies  for  non-specific  chattels,  25,  28. 
and  for  a  certain  sum  of  money,  20-24. 
if  due,  25,  26,  42,  47. 
by  certain  and  express,  26-30. 
agreement,  30-47. 
on  a  statute,  31-35. 

even  though  it  be  a  penal  statute,  40. 
on  a  specialty,  35. 
on  simple  contracts,  36-40. 
and  on  records,  35-41. 


558  INDEX. 

DEBT  —  continued. 

compared  with  assumpsit,  204,  205,  206,  207. 
compared  with  indebitatus  assumpsit,  205,  206,  207. 

DECEIT,  147,  148. 

DECEIT  AND  ASSUMPSIT,  211,  212,  221-223. 

DECLARATIONS,  265-338. 
Parts  of,  stated,  265. 

1.  the  title,  26.5-207. 

2.  the  venue,  267-272. 

matters  arising  within  the  realm,  267. 

without  the  realm,  267,  268. 
local  actions  distinguished  from  transitory  actions,  268,  272. 
what  actions  are  local,  268-272. 

3.  the  commencement,  272,  273. 

whether  the  declaration  should  repeat  the  original  writ,  272. 

4.  the  cause  of  action,  273,  338. 

5.  the  conclusion,  335. 

the  rule  against  surplusage  in,  273. 

at  common  law  and  under  Massachusetts  practice  identical  in  substantive 

averments,  273-276. 
Requisitp:s  of,  in  Actions  ex  Contractu,  276-290. 
in  Debt  on  a  simple  contract,  276-279. 

form  of,  under  Massachusetts  practice,  276. 
at  common  law,  277. 

substantive  averments  of  common  law,  277. 

formal  averments  of  common  law,  277-279. 
in  Covenant,  138,  142,  143,  279-281. 

form  of,  under  Massachusetts  practice,  280. 
at  common  law,  280. 

substantive  averments  at  common  law,  280. 
in  General  Assumpsit,  281,  282. 

form  of,  under  Massachusetts  practice,  281. 
at  common  law,  281. 

substantive  averments  of,  at  common  law,  282. 

formal  averments  at  common  law,  282. 
in  Special  Assumpsit,  283-285. 

form  of,  under  Massachusetts  practice,  283. 
at  common  law,  283. 

substantive  averments,  at  common  law,  283,  284,  285. 
General  Characteristics  of  Declarations  ex  Contractu,  285-290. 
statement  of  the  contract,  285. 

consideration,  286. 
considerations  executed  and  executory  distinguished,  286,  287. 
consideration  when  may  be  implied,  286. 

consists  of  benefit  to  promisor  or  loss  to  promisee,  286. 

when  arising  out  of  moral  obligation,  286. 

when  must  be  preceded  by  an  inducement,  286,  287. 
conditions  precedent,  performance  of  must  be  alleged,  287,  289. 
covenants,  kinds  of,  287,  288. 

allegations  of  request,  time,  and  place,  when  necessary,  289,  433  n. 
breach,  290. 


INDEX.  559 

DECLARATIONS  —  continued. 

notice,  when  and  when  not  a  condition  precedent,  290. 
Rkquisites  of,  in  Actions  ex  Delicto,  291-338. 
in  trover,  291,  292. 

form  of,  under  Massachusetts  practice,  291. 

at  common  law,  291. 
substantive  averments  at  common  law,  291. 
formal  averments  and  fictions,  292. 

degree  of  certainty  of  description  required  in,  370  n,  371  n. 
in  detinue,  292-301. 

form  of,  at  common  law,  293. 

substantive  averments  at  common  law,  293. 

fictitious  averments  at  common  law,  301. 

certainty  of  description  required  in  the  declaration,  293-294,  371  n. 

evolution  of  the  declaration  in  detinue,  294-301. 

the  allegation  of  bailment  as  a  substantive  averment,  294. 

as  a  fictitious  averment,  294,  29.5. 
the  passing  of  the  allegation  of  bailment,  295. 
the  advent  of  the  allegation  of  finding,  295,  296. 
the  evolution  of  the  allegation  from  substance  to  form,  296-301. 
in  replevin,  301-303. 

form  of,  under  Massachusetts  practice,  301. 
at  common  law,  301,  302. 
in  the  detinet  and  detinuit,  302,  303. 
characteristics  of,  in  the  detinet  and  detinuit,  302,  303. 
substantive  requisites,  at  common  law,  303. 
degree  of  certainty  of  description  required  in,  371  ii. 
in  trespass,  303-308. 

to  plaintiff's  person,  .303,  304. 

form  of,  under  Massachusetts  practice,  303. 

at  common  law,  303,  304. 
close  connection  with  appeals,  304. 
formal  averments,  304,  305. 

with  force  and  arms  against  the  king's  peace,  304,  305. 
de  bonis  asportatis, 

form  of,  at  common  law,  305,  306. 

for  the  total  destruction  of  a  chattel,  305. 
asportation  of  a  chattel,  300. 
substantive  averments  in,  306,  307. 
quare  clansum  fregit,  307,  308. 

form  of,  under  Massachusetts  practice,  307. 

at  common  law,  307,  308. 
requisites  of,  both  substantive  and  formal,  308. 
in  trespass  on  the  case,  308-330. 

for  injury  to  plaintiff's  reputation,  308-319. 
origin  of  actions  for  defamation,  308. 
the  first  case  for,  308. 

no  action  for  defamation  anciently  in  the  king's  court,  308. 
but  words  of  shame  punished  in  the  local  courts,  308  n. 
form  of  declaration  for  slander  under  Massachusetts  practice,  309. 
form  of  declaration  for  slander  at  common  law,  309,  310 
requisites  of,  at  common  law,  310-319. 


5G0  INDEX. 

DECLARATIONS  —  continued. 

innuendo,  311,  313,  314. 
words  "'of  the  following  tenor,"  311. 
colloquium,  312. 
malice,  317. 
for  malicious  prosecution,  310,  320. 

form  of,  under  Massachusetts  practice,  319. 
requisites  of,  320. 
for  negligence,  321-330. 

in  keeping  dangerous  creatures,  321-326. 

form  of,  under  Massachusetts  practice,  321. 
requisites  of,  321-326. 
of  carriers,  towns,  etc.,  326-330. 

form  of  declaration  in  New  Hampshire  for  injury  by  a  locomo- 
tive, 326-327. 
whether  in  New  Hampshire  an  allegation  of  plaintiff's  due  care 

is  required,  327. 
upon   whom  in   New  Hampshire  rests  the  burden  of  proof  of 

plaintiff's  lack  of  due  care,  327. 
requisites  of  declaration  in  Indiana  for  injury  by  a  locomotive, 

329-330. 
whether  in  Indiana  an  allegation  of  plaintiff's  due  care  is  re- 
quired, 328-330. 
form  or  declaration  in  Massachusetts  for  injury  caused  by  a  de- 
fective way,  324-326. 
whether  in  Massachusetts  an  allegation  of  plaintiff's  due  care  is 
required,  324-326. 
Gknerai.  Characteristics  of  Declarations  in  Actions  ex  delicto, 
allegations  must  not  be  by  way  of  recital,  330. 
but  be  direct  and  positive,  330. 
of  damage,  330,  331. 

when  may  be  given  in  evidence  under  the  alia  enormia,  330. 
when  not,  330. 
by  way  of  inducement,  330. 
actions  for  malfeasance,  330,  331. 
the  motive,  331. 
the  end  in  view,  331. 
the  means  of  accomplishing  it,  331. 
actions  for  misfeasance  or  nonfeasance,  331,  332. 
actions  for  wrongs  to  real  or  personal  property,  332,  333. 
allegations  requisite  in  case  for  disturbing  rights  of  common,  333. 
for  breach  of  duty,  334. 

for  consequential  injuries;  damages  how  alleged,  334. 
special  and  general  damage,  334. 
conclusion,  335. 
qualities  of,  335. 
Statements  of  Claim  in  Tort  (under  English  procedure  to-day),  336-338. 

1.  malicious  prosecution,  336. 

2.  trespass,  337. 

3.  trover,  337. 

4.  detinue,  338. 

5.  fraudulent  sale  of  lease,  338. 

6.  negligent  driving,  338. 


INDEX.  561 

DEED.     (See  Dixlaratioxs.) 

what  constitutes  (see  Covexaxt),  13G-143. 

sealed  recognition  of  unsealed  contract  not  a,  136. 
bare  signing  and  sealing  makes  a  covenant,  137. 
apt  words  of  sealing  must  appear  in  declaration  in,  138. 
covenant  may  be  implied  as  well  as  express,  139. 
DEMURRERS,  339-373. 
defined,  339. 
admit  facts,  344. 

if  well  pleaded,  339-346. 
not  conclusions  of  law,  344. 

nor  matter  judicially  noticed  to  be  impossible,  340. 
general,  form  of,  373. 

distinguished  from  special,  346-359. 
special,  form  of,  373. 

distinguished  from  general,  346-359. 

for  duplicity,  347. 
history  of,  346-347. 
must  specify  their  cause,  347. 
created  by  statute 

36  Edw.  III.  c.  15,347. 
27  Eliz.  c.  V.  par.  1,  347. 
4  Ann.  c.  xvi.  §  1,  349. 
for  what  errors  peculiarly  adapted,  348-359. 
form  defined,  350-359. 
formal  allegations  nontraversable,  350. 
form  distinguished  from  substance,  351-353. 
include  general  demurrers,  357-359. 
open  up  the  entire  record,  360. 

back  to  and  including  the  declaration,  but  no  further,  365-370. 
and  judgment  is  against  him  who  made  the  first  error  in  pleading,  361. 
unless  the  error  is  cured  by  pleading  over,  361. 
what  errors  are  cured  by  pleading  over,  361,  538-542. 
or  unless  the  plea  be  one  in  abatement,  behind  which  the  demurrer 
cannot  go,  362-364. 
are  not  pleas,  371. 
no  demurrer  to  a  demurrer,  370. 
no  demurrer  in  abatement,  376. 
to  evidence,  372. 

distinguished  from  special  verdicts,  373. 
DEPARTURE,  526-528. 
defined,  526,  527. 
illustrated,  528. 

test  for  determining  what  is,  stated,  527. 
is  of  two  kinds  — 

in  point  of  fact,  526. 
in  point  of  law,  528. 
DETINUE,  48-65. 

form  of  writ  of,  49. 
history  of,  48-53. 

(and  see  the  history  of  the  count  in  detinue  ;  and  that  this  count  was 
anciently  based  upon  a  bailment,  later  upon  a  finding),  294-301. 
36 


5G2  INDEX. 

DETINUE  —con^mwerf. 

form  of  oral  declaration  in,  49. 

actions  savoring  of  detinue  prior  to  the  reign  of  Edward  I.,  49. 

origin  of  detinue,  48,  49,  50. 

how  evolved  from  debt,  48,  49. 
the  parting  of  the  ways,  50. 
the  distinction  drawn,  50,  51. 
process  and  nature  unchanged,  52,  53. 
action  of,  defined,  53. 
nature  and  characteristics  of,  53-65,  103. 
the  only  remedy  by  suit  at  law,  53-56. 
for  the  specific  recovery  of  chattels,  56. 
wrongfully  taken  or  detained,  56. 
except  replevin,  57-65. 
judgment  in,  65. 
Detinue  Sur  Trover,  181-183. 
DE   VETITO   7VJ  M/0,  68,  69. 

DILATORY   PLEAS,  374-407. 
defined,  374. 

distinguished  from  pleas  in  bar,  374. 
to  be  pleaded  in  what  order,  374. 
to  the  jurisdiction,  375,  376. 
in  suspension  of  the  action,  376,  377. 
to  the  declaration,  378. 
to  ihe  writ,  378-402. 

misjoinder  or  nonjoinder  of  parties,  361,  402  n. 
misnomer,  378-382. 
autre  action  pendant,  382-402. 
other  errors  in  the  writ,  374. 
judgments  ou,  403-407. 

DISABILITY   OF   THE    PLAINTIFF,  376,  377. 

that  he  is  fictitious,  an  outlaw,  excommunicated,  etc.,  376,  377. 

DISSEISIN    OF   CHATTELS,  101-104. 

(^See  Appeals  of  Larceny  and  Robbery.) 
of  land,  102. 
of  goods,  anciently  altered  the  property  therein,  102. 

distinguished  from  disseisin  of  land,  103. 
remedies  for,  103,  104. 
modern  rule  as  to,  104. 

DISTRAINT   BY   ALL   GOODS   AND   CHATTELS,  9. 
DISTRESS,  67,  70,  75. 
DUPLICITY,  528-534. 

defined,  528. 

applies  to  pleas  peremptory,  529. 
not  to  pleas  dilatory,  529,  533. 

instances  of,  529,  530. 

mere  surplusage  does  not  constitute,  531. 

should  be  attacked  by  demurrer,  532. 


INDEX.  563 

E. 

EAR-MARKING  CATTLE,  97. 
ESTOPPEL,  383-385. 

(See  Special  Traverse.) 
EVIDENCE, 

demurrer  to,  372. 
EXACTION,  9. 
EXECUTORS,  224  n.,  225  n. 

not  to  be  sued  on  covenant  of  decedent,  143. 

effect  on,  of  judgment  against  decedent,  152. 

F. 

FEE  SIMPLE  ESTATES, 

how  to  be  pleaded  (see  Df.clarations). 
FICTIONS.     (See  Declarations.) 
FIERI  FACIAS,  152,  186. 
FILAZER,  7,  8. 
FINDER, 

duties  of,  189,  190. 

rights  of,  189-191. 
FLA  GRANTE  DELICTO,  103. 

FORM  AND  SUBSTANCE.     (See  Demurrers.     See  Declarations.) 
FRESH  SUTE  (suit  —  pursuit),  97,  98,  105,  109. 

G. 

GENERAL  ISSUE,  408-473. 
purpose  of,  412. 
defined,  408-412. 
conclusion  of  pleas  of  the,  410. 
issue  defined,  409. 
issue  how  joined,  409. 

exceptions  to  the  rule  as  to  the  formation  of  issues,  410. 
to  each  personal  action  stated,  410,  411,  412. 

defences  admissible  under  the  general  issue  to  actions  ex  contractu, 

in  debt  on  a  simple  contract,  412-421. 

in  debt  on  a  bond,  421-431. 

in  assumpsit,  431-437. 
defences  admissible  under  the  general  issue  to  actions  ex  delicto, 

in  trover,  437-439. 

ill  trespass  de  bonis  asportatis,  439-444.         , 

iu  trespass  per  quod  servitium  atnisit,  444-446. 

in  trespass  qiiare  clausum  fregit,  446-455. 

in  trespass  to  plaintiff's  body,  455-460. 

in  trespass  on  the  case,  456-460. 

in  detinue,  460-466. 

in  replevin,  466-471. 
recapitulation  of,  471-473. 


564  INDEX. 

H. 

HABEAS  CORPUS,  9. 
HUE  AND  CRY,  72. 


I. 

IMPARLANCES,  403. 

INDEBITATUS  ASSUMPSIT.     (See  Assumpsit.) 

distinguished  from  special  assumpsit,  205-207. 

defined,  231. 

history  of,  231-236. 

characteristics  of,  236-244. 
INDUCEMENT.     {See  Declarations.) 
INNKEEPER,  216-221. 
INTENT, 

when  material  in  trover,  191-197, 
ISSUE, 

how  formed,  409,  410. 

general,  409. 

special,  409. 

immaterial  (see  Repleader). 

made  bv  two  affirmatives,  when  good,  410. 


J. 

JUDGMENT, 

on  demurrer  to  a  plea  in  abatement,  403. 
to  a  plea  in  bar,  383-385. 
for  that  the  action  is  misconceived,  383-385. 
on  issue  of  fact  joined  on  a  dilatory  plea,  404-406. 

a  peremptory  plea,  382-385. 
in  detinue  {see  Detinue). 
JURISDICTION, 

pleas  to,  375,  376. 
the  first  in  order  of  pleading,  375. 
grounds  of,  376. 
must  give  better  writ,  376. 
JURY.     (See  Trial.) 
JUSTIFICATION.     (See  Confession  and  Avoidance.) 


L. 

LAW, 

matter  of,  not  admitted  on  demurrer  (see  Demurrers). 
LIBERUM  TENEMENT UM,  446-455. 
LOCAL  ACTIONS,  267-272. 


INDEX.  565 


M. 


MATERIAL  FACTS.    (See  Declarations,  and  tue  Substantive  Aver- 
ments  THEREIN.) 

MAYHEM  DEFINED,  92. 

appeal  of,  91. 
MESNE  PROCESS,  8,  9. 
MISFEASANCE,  208,  225-230,  231. 
MUTUAL  PROMISES,  234,  235. 

N. 

NIL  DEBET,  412-421. 

(See  General  Issue.) 
NON  ASSUMPSIT,  431-437. 
NON  CEP  IT,  466-471. 
NOiV  DE TIMET,  460-466. 
NOM  EST  FA  CTUM,  421-431. 
NONFEASANCE,  225-230. 
NON  OBSTANTE  VEREDICTO, 

motion  for  judgment,  546-551. 

defined,  546. 

distinguished  from  repleader,  546,  549-551. 

proper  when  defendant  confesses  and  fails  to  avoid,  546-549. 
NOT  GUILTY,  437-460. 
NULLA  BONA,  188,  189. 


o. 

OATH.     (See  Trials.) 

ORDEAL.     (See  Trials.) 

ORIGINAL  WRIT.     (See  Writ.) 

OUTLAWRY,  9. 

OYER.    (See  Declaration  in  Covenant.) 


PARTIES  TO  A  WRIT  OF  COVENANT,  143. 
PLACE.  (See   Venue.) 
PRACTICE  ACTS,  262,  263. 

actions  under,  262. 

procedure  under,  263,  264. 

1.  the  writ,  263. 

2.  the  form  of  the  writ,  263. 

3.  the  service  of  the  writ,  264. 
PRAECIPE,  8. 
PROCEEDINGS  IN  AN  ACTION,  3. 


566  INDEX. 

TROCESS,  8,  9. 

defined,  8. 

mesne,  8. 

kinds  of,  9. 
PROFERT.     (See  Declaratiox  in  Covenant.) 

PROPERTY  SUFFICIENT  TO  MAINTAIN  TROVER,  197, 198,  200-202. 
PROVISIONS  OF  OXFORD,  145,  148,  149. 


Q. 

QUO  MINUS, 
writ  of,  6-7. 
form  of  writ,  6. 
peculiar  process  of  the  Exchequer,  7. 


R. 

RECORD.     (.See  Demurrer.     5ee  Trials.) 
REPLEADER, 

motion  for,  542-546. 
defined,  542. 

characteristics  of,  stated,  542-545. 
issue  joined  must  be  on  a  matter  immaterial,  545,  546. 
Statute  32  Heu.  VIII,  c.  30,  did  not  abolish  repleaders,  545,  546. 
REPLEVIN, 
defined,  67. 
history  of,  65-77. 

its  early  contemporary,  68-69. 

the  ancient  original  writ,  67. 

the  pleint,  67. 

in  Glanvill's  time,  70,  75. 
form  of  the  writ,  70. 

in  Bracton's  time,  71-73. 
form  of  the  writ,  70  7i. 

the  Statute  of  Marlebridge,  71. 

plaint  under  this  statute,  71. 

procedure  upon  the  plaint,  72-73. 

after  the  Statute  of  Marlebridge,  73-74. 

the  Statute  XI.   George  II.,  c.  xix.,  76. 

the  writ  de  withernam,  77. 
scope  and  nature  of,  77-88,  103. 

does  not  lie  for  damages  merely,  77-79. 

a  taking  necessary,  79-81. 

a  wrongful  taking,  81-82. 

by  fraud  or  violence,  82-87. 

a  rightful  taking  suffices  in  Massachusetts,  87-88. 
distinguished  from  trespass,  107. 
avowry,  466-471,  507-518. 
conuzance,  466-471,  507-518. 


INDEX.  567 

REPLICATION  DE  INJURIA,  ^9Q-518. 

explained,  496. 

defined,  496,  497. 

qualities  of,  stated,  497-499. 

■will  not  put  immaterial  matter  in  issue,  499. 
can  be  used  in  assumpsit,  500-501. 

or  in  reply  to  an  avowry  or  conuzance  in  replevin,  507-518. 
but  when  a  plaintiff  makes  title  in  his  declaration,  and  the  defendant 
replies  against  it,  de  injwia  is  not  a  good  replication,  504-506. 
REPUGNANCY,  535-538. 
defined,  535. 
instances  of,  536,  587. 

surplusage  when  material  in  determining  question  of,  537. 
REQUEST,  when  necessary  to  be  alleged. 
RETURN   OF    PROPERTY, 
in  actio  furti,  99. 
under  writ  of  detinue,  65. 
under  writ  of  replevin,  81. 
in  appeal  of  larceny  or  robbery,  104-109. 
in  de  bonis  asportatis,  99-100. 
by  avowry,  466-471,  .507-518. 
by  conuzance,  466-471,  507-518. 
RIEN  EN  ARRERE,  411. 


S. 
SCIENTER,  188. 
SCIRE   F.4C/^^,  41,  42. 
SHERIFF,  216. 
SPECIAL   TRAVERSES,  518-525. 

explained,  518. 

defined,  519. 

effect  and  object  stated,  519--522. 

instances  of,  522-525. 
STATUTE  OF  FRAUDS,  434. 

STATUTE  OF  LIMITATIONS,  413,  414,  433,  433  n. 
STATUTE  OF  MARLEBRIDGE,  71. 
STATUTE  OF  WALES,  125. 

STATUTE  OF  WESTMINSTER  IL     {See  Westminster  II.) 
SUMMONS,  9. 

writ  of,  in  Massachusetts,  152. 
SURPLUSAGE,  273. 


T. 

TIME,  4.33  n. 

TRANSITORY  AND  LOCAL   ACTIONS.     (See  Local  Actions.; 

TRESPASS,  89-123. 

history  of  the  trespasses  generally,  89-90. 

kinds  of,  91. 


568  INDEX. 

TRESPASS  —  continued. 

(a)  to  plaintiff's  person,  91-92. 
appeal  of  mayhem,  92. 

of  peace  and  wounds,  91. 

(b)  to  plaintiff's  goods,  97-109. 
actio  furll,  97,  98,  99,  100. 

appeals  of  larceny  and  robbery,  100,  101. 
how  far  the  disseisin  of  a  chattel,  101-104. 
remedy  for,  103. 

how  differing  from  the  appeal  of  larceny,  104-109. 
distinguished  from  replevin,  107. 
did  not  lie  against  the  third  hand,  108. 

(c)  to  plaintitt"'s  land,  117-118. 

no  form  of  criminal  appeal,  117. 

ancient  action  coupled  with  intentional  wrong,  117. 

the  modern  action,  118. 
characteristics  of,  to  plaintiff's  person,  92-97. 
the  essence  of  trespass,  92. 
the  force  necessary,  93. 
assault  defined,  94. 
battery  defined,  93. 
the  element  of  intent,  95-97. 
characteristics  of,  to  plaintiff's  goods,  109-117. 
the  possession  necessary,  112-117. 
actual  or  constructive,  118. 
possession  of  a  thief,  118  n. 
what  must  be  proved,  117. 
anciently  lay  only  in  cases  of  asportation  or  complete  destruction, 

109,  110. 
modern  rule,  110. 
characteristics  of  trespass  to  plaintiff's  land,  118-123. 
the  possession  necessary,  118-122. 
actual  possession,  118. 
possession  by  relation,  118. 

of  a  reversioner,  121. 

TRIALS,  245. 

ordeals,  246,  247. 
oaths,  247,  248. 
battle,  249-254. 
record,  254,  255. 
charter,  126,  255. 
jury,  255,  257. 

TROUVER,  179,  185. 

TROVER,  179-203. 

defined,  179,  185-189. 
history  of,  180. 

chose  adirre'e,  180,  181,  183. 

count  for  a  chose  adirree,  180. 
defined,  181.  • 

detinue  sur  trover,  180,  182,  183,  184. 
count  on  detinue  sur  trover,  182. 


INDEX.  569 

TROVER  —  continued. 

the  developed  action  of  trover,  185. 

the  earliest  reported  case  of  conversion,  183. 
the  modern  action  of  trover,  185-203. 
characteristics  of,  stated,  185. 

explained  by  Lord  Mansfield,  185-189. 
■what  amounts  to  a  conversion,  187-190. 
who  has  an  action  therefor,  187-190. 
what  damage  is  recoverable  in  trover,  187. 
what  rights  in  the  converted  chattel  must  the  plaintiff  liave,  187,  200. 

a  finder  may  have  trover  against  a  stranger  to  the  chattel  who  con- 
verts it,  191. 
query,  whether  a  thing  taken  from  a  child  may  be  laid  to  be  the 
parent's  chattel,  197. 
in  deciding  whether  a  given  act  is  a  conversion,  intent  may  be  material, 

191. 
whether  converting  a  thing  to  its  usual  and  profitable  use  is  a  conversion, 
191,  192,  and  note. 


UNBROKEN  TRAIL,  97. 


u. 


V. 


VEE  T)E   NAM,  68,  69. 

VENIRE  FACIAS  AD  RESPONDENDUM,!. 

VENUE.     {See  Local  Actions.) 

VI    ET    ARMIS    ET    CONTRA     PACEM.     (See    Declar.\tiox    ix 

Trespass.) 
VOUCHER,  98. 


W. 

WARRANTY,  211-221,  244,  245. 

WESTMINSTER   XL,    STATUTE   OF,  145-153,  169,  170. 

part  of  the  common  law  of  Massachusetts,  149. 
WRIT,  3-9,  11. 

de  withernam,  77. 

of  right,  form  of,  3. 

original,  characteristics  of,  3-4. 

form  established  by  statute  in  Massachusetts,  151. 

of  quo  minus,  G-7. 
form  of,  6. 
characteristics  of,  7. 

original,  how  procured,  7-8. 

amendment  of,  8-9. 

of  debt,  forms  of,  12-13. 

of  detinue,  49. 

of  replevin,  70. 


570  INDEX. 

WRIT  —  continued. 

of  covenant,  125. 

of  trespass  on  the  case,  149  n. 

of  error,  no  form  in  Massachusetts,  151. 

of  scire  facias  against  bail,  no  form  in  Massachusetts,  151. 

of  execution   in  dower   where  woman  divorced  a  vinculo,   no  form   in 
Massachusetts,  151. 

bad  on  its  face  may  be  quashed  by  court  ex  officio,  151. 

original,  is  the  commencement  of  the  suit,  3,  4. 

defects  in  (see  Abatement,  Dilatory  Pleas,  etc.). 

how  procured  at  common  law,  7,  8. 

when  may  be  dispensed  with  and  when  not,  7,  8. 
WRITINGS,    UNSEALED,   NEED   NOT   BE   COUNTED   ON,  434. 


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